Federal appeals panel hears arguments in Maine school-choice case

Friday, February 5, 1999

Several parents in Maine want a court ruling reversed so the state will be forced to pay for their children's religious schooling.

Represented by a national conservative religious group, they have asked a federal appeals court to overturn a lower-court decision barring state government from paying for students to attend sectarian schools.

In 1997 several parents in Minot, a rural town with no public high school, sued the state, arguing that Maine's rural school-choice program violated their religious liberty. Maine law says a private secondary school “may be approved for the receipt of public funds only if it is a nonsectarian school in accordance with the First Amendment of the United States Constitution.” The Minot parents sent their children to a Catholic school and sought reimbursement from the state.

In Maine's rural school-choice program, school districts that lack high schools send children to private schools. According to the Maine Department of Education, 145 state school districts use the program.

The American Center for Law and Justice, a conservative religious law firm based in Virginia, filed the suit on behalf of the Minot parents. The ACLJ argues that Maine's refusal to pay tuition to religious schools amounts to religious discrimination that cannot be justified by a compelling state interest.

Last August, U.S. District Judge Brock Hornby ruled that none of the parents' constitutional rights had been subverted because the state had no obligation to send their children to religious schools.

“I decide today only whether Maine is constitutionally required to extend subsidies to sectarian schools,” Hornby wrote. “The plaintiffs [Minot parents] certainly are free to send their children to a sectarian school. That right is protected by the Constitution. The law is clear, however, that they do not have the right to require taxpayers to subsidize that choice. That is true in a district that builds and operates its own public high school; it is also true in a district that has no public high school.”

After the ruling, the ACLJ appealed to the 1st U.S. Circuit Court of Appeals to overturn it. The ACLJ and state argued yesterday before a three-judge panel of the 1st Circuit over the constitutionality of the law.

Vincent McCarthy, a senior counsel for the ACLJ, called on the federal panel to declare the Maine school-choice law unconstitutional.

“This is a case where the state discriminates against people of faith who are only trying to give their children an education that reflects their religious beliefs,” McCarthy said. “The state law is unconstitutional and discriminatory because it refuses to extend a generally available public benefit – tuition payments for secondary education – to parents who send their children to a religious school.”

Peter J. Brann, assistant attorney general of Maine, wrote in a brief submitted to the 1st Circuit that the ACLJ's arguments were not constitutionally sound. Brann said that the state could not constitutionally fund religious schools and that even if it could, there would be no constitutional obligation for the state to do so.

“The plaintiffs' specific constitutional theories are fatally flawed,” Brann wrote in the state's brief. “Quite simply, there is no constitutional right to take a government subsidy to exercise a first amendment right. In other words, the State's refusal to pay tuition to pervasively sectarian schools is not religious discrimination or a burden on religion that must be justified by a compelling state interest.”

Brann wrote that neither the establishment nor free-exercise clauses of the First Amendment had been offended by Maine's program. In fact, Brann said that if the state were to provide tax dollars for students to attend religious schools, then church-state separation would be subverted. As for the free-exercise claim, Brann argued that the families had not shown that sending their children to a private Catholic school was required by their religion or that the state's refusal to pay tuition amounted to a substantial infringement on their religious liberty.

“In sum, as the district court succinctly found, regardless of the constitutional route traveled, all roads lead to Rome – the state's refusal to subsidize a religious education is entirely constitutional,” Brann wrote.

McCarthy, however, responded that if a state elected to fund private education, it could not exclude religious schools.

“It is clear that once a state decides to fund private education, it must do so with neutrality,” he said. “They cannot discriminate against religious schools and punish parents who hold religious beliefs. This is an issue that is likely to be eventually decided by the U.S. Supreme Court.”

Marc Stern, a senior counsel for the American Jewish Congress, a Washington, D.C.-based nonprofit group, says no precedent exists to suggest that states must funnel public funds to religious schools.

The ACLJ's “insistence that the establishment clause affirmatively mandates that religion be treated equally with non-religion cuts a wide swathe through the law of church-state separation,” Stern wrote in a friend-of-the-court brief submitted to the 1st Circuit.

Stern wrote that two U.S. Supreme Court decisions from the early 1970s “plainly hold that the state may not pay for religious education.”

The Maine law is also being challenged in state court.

Several families in the city of Raymond are also seeking tuition reimbursement for their children who are attending private Catholic schools. Last year a state judge agreed with the federal court and found the law to be unconstitutional.

The Raymond families, represented by the Institute for Justice, a libertarian law firm based in Washington, D.C., have appealed the decision to the Maine Supreme Court. The high court has heard oral arguments, but has not ruled in the case.