PHOTO: Institute for Justice

The Institute for Justice appealed to the U.S. Supreme Court in March, asking the justices to hear the case of three Maine families wishing to send their children to private religious schools.

The issue to decide: Can the state’s school choice program discriminate against private religious schools based on what they teach?

Maine’s town tuition program, created in 1873, requires towns without public schools to send local children to other public school districts or pay for private school tuition. However, Maine’s program prohibits towns from paying tuition at private religious schools.

The plaintiffs in the case, Carson, Gillis and Nelson v. Hasson, argue Maine’s law violates the U.S. Constitution and the recent Espinoza decision. The 1st U.S. Circuit Court of Appeals, however, rejected that argument last year.

Under Espinoza, the U.S. Supreme Court ruled that states could not prohibit religious schools from participating in publicly funded programs due to their religious status.

Maine’s law requires participating private schools to be “nonsectarian.” The state courts and 1st U.S. District Court of Appeals argue this does not violate Espinoza.

The state’s law under § 2951(2) simply states that the school must be “a nonsectarian school in accordance with the First Amendment of the United States Constitution.”

Exactly how the First Amendment defines nonsectarians schools is not clear, but the state of Maine comes up with a rather clever way to defend its discrimination: “While affiliation or association with a church or religious institution is one potential indicator of a sectarian school, it is not dispositive. The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented,” the state’s department of education claimed.

According to the state, prohibiting religious instruction does not violate the U.S. Constitution or the recent Espinoza decision because they are discriminating against religious uses, not religious status.

The 1st U.S, Circuit Court of Appeals agreed, arguing that Maine’s requirement of “nonsectarian” schools is not a prohibition on the religious status of a school, but a prohibition on religious uses.

Under this interpretation, a religious school could participate in Maine’s town tuition program so long as it didn’t teach religious things.

“The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional,” says IJ senior attorney Michael Bindas.

Several groups, including a coalition of 18 states, filed amicus briefs urging the U.S. Supreme Court to hear the case. 

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