Public Funds Public Schools and a large group of allies have filed an amicus curiae (friend of the court) brief in Crosspoint Church v. Makin, a case challenging the federal constitutionality of Maine’s law prohibiting discrimination against LGBTQ+ and other students in schools receiving public funds.

The education clause of Maine’s constitution requires the State Legislature to provide access to public education for all Maine’s children. For reasons including Maine’s rural geography, the Legislature allows districts that do not operate their own public schools to pay students’ tuition at approved private schools under the “town tuitioning” program. Schools receiving such funds must comply with various education standards, including antidiscrimination provisions that protect Maine’s most vulnerable students.

In 2022, the U.S. Supreme Court ruled in Carson v. Makin that Maine had to allow religious schools to participate in the town tuitioning program. In 2023, Crosspoint Church filed a lawsuit in federal district court alleging that the Maine Human Rights Act (MHRA) violated Carson and its federal constitutional rights by excluding it from town tuitioning if it maintained policies discriminating against LGBTQ+ individuals, which it claims are required by its religious beliefs. Crosspoint Church moved for a preliminary injunction, which the district court denied. Crosspoint Church then appealed, and the case is now before the U.S. Court of Appeals for the First Circuit.

PFPS, along with numerous other education and civil rights organizations 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 Network for Public Education, and Pastors for Children, submitted an amicus brief urging the appellate court to uphold application of the MHRA to all schools receiving public funds, whether public or private, religious or secular.

The amicus brief argues that the MHRA, which prohibits discrimination on the basis of “sex, sexual orientation or gender identity, physical or mental disability, ancestry, national origin, race, color or religion,” is a neutral, generally applicable law subject to a minimal standard of judicial review. But the brief explains that the MHRA could withstand even the highest level of constitutional scrutiny because protecting LGBTQ+ students from discrimination is a compelling state interest and the law at issue is narrowly tailored to fulfill it.

Also noted is the particular importance of anti-discrimination protections for LGBTQ+ students, who are more likely to be bullied or harassed and report more anxiety and depression than students who do not identify as LGBTQ+. The amicus brief further explains that antidiscrimination policies benefit all students because learning in an inclusive environment promotes diversity and instills democratic values. Exempting publicly funded schools from antidiscrimination requirements not only stifles this educational benefit, but also sets a dangerous precedent that could jeopardize civil rights laws protecting various vulnerable groups.

“PFPS supports Maine’s commitment to protecting LGBTQ+ students receiving a publicly-funded education through the town tuitioning program,” said Jessica Levin, PFPS Director and Education Law Center Litigation Director. “We believe there are few issues more important than ensuring that antidiscrimination laws like the MHRA are upheld as constitutional—not just in Maine but across the nation—so that all students receive equal access to a public education free from discrimination.”

Crosspoint Church is one of several lawsuits attempting to build upon the dangerous holdings in cases such as Carson. In addition to Crosspoint Church, PFPS and others recently filed an amicus brief in Mid Vermont Christian School v. Saunders, a case in the U.S. Court of Appeals for the Second Circuit, and intend to file a third amicus brief in St. Dominic Academy v. Makin, another case about Maine’s antidiscrimination protections that is currently in the First Circuit.

PFPS and the other signatories of these amicus briefs are represented pro bono by the law firm Morrison Foerster.

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PFPS Urges U.S. Supreme Court Not to Force Religion into Maine’s Public Education System

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