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US Supreme Court: Religious schools cannot be excluded from Maine tuition program

The U.S. Supreme Court, Tuesday, June 21, 2022 in Washington.
Jose Luis Magana
The U.S. Supreme Court, Tuesday, June 21, 2022 in Washington.

In a case with potential national implications, the U.S. Supreme Court has ruled that Maine's exclusion of religious schools from a town tuitioning program is unconstitutional.

The 6-3 ruling comes following a years-long challenge of the state program, which pays for about 5,000 students in towns without high schools to attend other public or private schools -- but not religious schools.

Writing for the majority of the court, Chief Justice John Roberts said that exclusion violates the free exercise clause of the first amendment.

"A state need not subsidize private education," Roberts writes. "But once a state decides to do so, it cannot disqualify some private schools solely because they are religious."

"Maine's exclusion of religious options was hardly neutral. It was the embodiment of government hostility towards religion," said Michael Bindas, an attorney with the Institute for Justice, which represented the parents who brought the legal challenge of the tuition program in 2018.

Bindas said Tuesday's ruling has major implications beyond Maine. He expects that a similar program in Vermont could be ruled unconstitutional. And he said it also opens up more opportunities for legislatures across the country to pass school choice laws providing vouchers to all institutions -- public, private, and religious.

"Those legal uncertainties are now put to rest. And they can confidently adopt choice programs," Bindas said. "And I'm very confident that we are going to see a spate of school choice programs as a result of this opinion."

The decision was largely expected from many, as members of the court's conservative majority repeatedly questioned the constitutionality of the program at a hearing late last year. The court also ruled against a similar ban on religious school funding in a case around a tax-credit scholarship program in Montana two years.

But the scope of the ruling within Maine is still unclear. At an appearance on Tuesday's "Maine Calling" program, state Attorney General Aaron Frey said he was still working to read through the court's opinion and understand its effects.

But he said that while only a few thousand students used the town tuitioning program, the ruling could potentially have a much broader impact.

"It is a concern that this decision may end up broadly converting, legislating Maine's program of providing public education, into something more a voucher program, which this program is not," he said. "And that is going to be something that the administration,that the legislature, is going to have to consider, with some time and some full understanding of what exactly this order might mean."

It's also not yet known whether religious schools will apply to be included in the state's town tuitioning program, as Frey noted that would force them to abide by certain provisions, including state human rights and anti-discrimination laws.

"Because it is a concern, not only about how it is that Maine is going to provide this public benefit of a public education for all students," Frey said. "But also making sure that public education is an inclusive education that doesn't discriminate based on your gender identity, based on who it is you choose to partner with. It's very important that those Maine laws are also faithfully applied as well, when it comes to a public education."

School choice advocates and religious organizations hailed Tuesday's ruling. But it was denounced by several education groups, including the National Education Association and the National Coalition for Public Education.

Steve Bailey, the executive director of the Maine School Management Association, is concerned that more parents using taxpayer dollars for religious schools could take state funding away from public institutions.

And Grace Leavitt, the head of the state teachers' union, worries that the ruling could harm public education by allowing taxpayer funding to go to schools that may discriminate or not meet state standards.

"Our public education is for all of our students. We accept all students in our schools," Leavitt said. "And this decision is going to funnel those public tax dollars to some private religious schools that are only for a select few students."

A spokesperson for the Maine Department of Education said the agency is "reviewing the decision for its implications for Maine schools and will implement the State’s tuition program in accordance with the ruling.”

For disclosure the Maine Education Association represents most of the reporters at Maine Public.