Listen to Oral Argument in St. Dominic Academy v. Makin on January 7

Public Funds Public Schools and allies submitted an amicus curiae brief in St. Dominic Academy v. Makin urging the First Circuit Court of Appeals to uphold the application of Maine’s antidiscrimination requirements to all schools receiving public funds, whether public or private, religious or secular. PFPS also recently filed amicus briefs in two other cases presenting similar issues.

Under the “town tuitioning” program, Maine fulfills its state constitutional duty to provide public education for all resident children by allowing districts that do not operate their own public schools to pay students’ tuition at approved private schools. Private schools receiving public funds are subject to the same educational standards as public schools, including antidiscrimination provisions in Maine law.

In 2023, a group of plaintiffs, including St. Dominic Academy, filed a federal lawsuit alleging that the Maine Human Rights Act (MHRA) violated the U.S. Constitution and the U.S. Supreme Court’s 2022 decision in Carson v. Makin by excluding the school from town tuitioning if it maintained policies discriminating against LGBTQ+ individuals, which it claims are required by its religious beliefs.

A broad group of advocacy organizations led by PFPS—including the National Education Association, the American Federation of Teachers, the National School Boards Association, American Atheists, the Council of Parent Attorneys and Advocates, Disability Rights Maine, the Freedom From Religion Foundation, In the Public Interest, the Maine Education Association, the Network for Public Education, and Pastors for Children—stepped up to defend the MHRA by co-filing an amicus brief in the St. Dominic Academy case. The amici were represented pro bono by the law firm Morrison Foerster.

The amicus brief argues that the federal appellate court should decline to hear St. Dominic’s claims because the state court has not yet interpreted the scope and applicability of the MHRA to the town tuitioning program. The brief also argues that the MHRA is a neutral, generally applicable law subject to a minimal standard of judicial review, but that it could withstand even the highest level of constitutional scrutiny because protecting LGBTQ+ and other students from discrimination is a compelling state interest, and the MHRA is narrowly tailored to fulfill it.

This is the third amicus brief recently filed by PFPS in response to legal challenges brought by religious schools in Maine and Vermont refusing to comply with state antidiscrimination requirements. PFPS also filed amicus briefs in Crosspoint Church v. Makin and Mid Vermont Christian School v. Saunders, cases which similarly seek unfettered access to public funds without the obligation to comply with state antidiscrimination laws.

“PFPS filed this brief to help protect vulnerable student groups from the onslaught of lawsuits demanding court permission to discriminate against them,” said Katrina Reichert, Education Law Center Legal Fellow. “Cases like St. Dominic Academy and Crosspoint Church not only threaten the day-to-day safety of LGBTQ+ students, but also threaten to impair states’ ability to fulfill their constitutional duty to provide all students access to a public education.”

The First Circuit will hear oral argument in both St. Dominic Academy and Crosspoint Church on January 7 at 9:30 a.m. ET. The public can listen to live audio or a recording.