November 14, 2019

Public Funds Public Schools (PFPS) has filed an amicus curiae (friend of the court) brief in federal appellate court in Carson v. Makin, a case challenging the State of Maine's decision not to use public education funding to pay for tuition at private religious schools.

PFPS, a joint initiative of Education Law Center (ELC) and the Southern Poverty Law Center (SPLC), is a national campaign to ensure that public funds are usedto support and maintain public education and are not diverted to private schools.

As in other states, Maine's constitution contains an education clause requiring the State to maintain and support a system of public schools available to all Maine children. To carry out this mandate, the State Legislature permits "school administrative units" that do not operate their own public schools for geographic or historical reasons to pay tuition to approved, nonsectarian private schools on behalf of resident children. Participating private schools must comply with a host of legal requirements to ensure they meet State education standards for an appropriate, nondiscriminatory education.

In 2018, three Maine families filed a federal lawsuit challenging the Legislature's longstanding decision to limit the program to nonreligious schools. The district court rejected the plaintiffs' arguments that the State's exclusion of religious schools from the tuition program violates their rights under the First and Fourteenth Amendments of the U.S. Constitution.

The plaintiffs appealed, and the case is now before the U.S. Court of Appeals for the First Circuit. PFPS submitted an amicus brief in support of the Maine Commissioner of Education's defense of the law, urging the appellate court to affirm the lower court's decision.

PFPS's brief emphasizes Maine's compelling interest under the state constitution to preserve the carefully regulated tuition program in its current form. The brief explains that inclusion of religious schools would undermine the State's construction of a limited program to fulfill its education clause duty in the narrow circumstances where a traditional public school is not available.

The amicus brief also details how expanding the program to religious schools would divert significant resources from Maine's already underfunded public education system. Finally, it warns that, because religious schools often discriminate based on characteristics such as religion and disability, including them in the tuition program would entangle the State in regulating matters of religion or force it to fund discrimination.

"PFPS supports Maine's decision not to spend limited public education funds on tuition for religious schools," said Jessica Levin, ELC Senior Attorney and PFPS Director. "Unnecessarily expanding the tuition program would undermine the State's constitutional commitment to provide an adequate public education to every child because it would divert funding away from a public school system that needs more, not fewer, resources."

"Our brief highlights Maine's longstanding commitment to providing every child with an opportunity to attend school in an environment free from discrimination. We urge the court to uphold the legal framework promoting this essential goal," said Sam Boyd, SPLC Senior Staff Attorney."

For more information on voucher litigation and PFPS amicus briefs, visit the Litigation page of the PFPS website.