Federal court rules Maine does not have to pay for religious schooling

Wednesday, June 2, 1999

A federal appeals court has agreed with a lower federal court ruling and a state high court decision that Maine's department of education is under no constitutional obligation to fund sectarian schools as it does public schools.

Maine's rural school-choice program provides funds enabling families in communities with no high school to send their children to private school elsewhere — except religious ones. The law has been challenged by two groups of families — both in rural areas — as a violation of an array of constitutional rights.

In 1997 several parents in Minot sued the Maine Department of Education in federal court, arguing that the school-choice law violated the establishment clause and the free-exercise clause of the First Amendment. Specifically, the parents' lawyers, who included the conservative nonprofit group the American Center for Law and Justice, claimed that the law was hostile toward and amounted to government discrimination of religion. In August 1998, U.S. District Judge Brock Hornby ruled in Strout v. Albanese that such arguments were specious and that the state had no obligation to fund religious schooling.

A three-judge panel of the 1st U.S. Circuit Court of Appeals on May 27 unanimously agreed with Hornby's ruling.

Citing the U.S. Supreme Court's 1973 decision in Committee for Public Education v. Nyquist, the appeals court panel held that the direct government funds to sectarian schools was not constitutionally permissible. In Nyquist, the high court invalidated a New York program that, in part, would have provided funds to religious schools to help pay for repairs and maintenance.

“There can be no question that these grants could not, consistently with the Establishment Clause, be given directly to sectarian schools, since they would suffer from the same deficiency that renders invalid the grants for maintenance and repair,” Chief Judge Juan Torruella wrote for the panel in Strout v. Albanese. “In the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purpose, it is clear from our cases that direct aid in whatever form is invalid.”

Vincent McCarthy, a senior counsel for the ACLJ, argued before the 1st Circuit panel that the rural school-choice law violated both religious liberty clauses of the First Amendment because it refused to extend a public benefit — tuition payments for secondary education — to sectarian schools simply because of religion.

The 1st Circuit found that argument unpersuasive.

“The historic barrier that has existed between church and state throughout the life of the Republic has up to the present acted as an insurmountable impediment to the direct payments or subsidies by the state to sectarian institutions, particularly in the context of primary and secondary schools,” Torruella wrote. “Although the guidance provided by the Supreme Court has been less than crystalline, perhaps often by necessity due to the subject matter involved, approving direct payments of tuition by the state to sectarian schools represents a quantum leap that we are unwilling to take. Creating such a breach in the wall separating the State from secular establishments is a task best left for the Supreme Court to undertake.”

Regarding the families' arguments that the free-exercise clause of the First Amendment had also been offended by the Maine ruling, Torruella noted that even if the law did limit their free exercise, “the state has justified the limit by its purpose of avoiding violation of the Establishment Clause.”

Torruella, however, said that “no one plausibly reading the statute could come” to such a conclusion. He said the rural school-choice law did not bar families from giving their children a religious education. “All it means is that the cost of religious education must be borne by the parents and no the state,” he wrote.

The 1st Circuit's reasoning in upholding the school-choice law was very similar to the Maine high court's holding in a case stemming from the same school-choice program in Bagley v. Raymond School Department. In April the Main Judicial Supreme Court ruled that the rural school-choice program was constitutional and that the state had no obligation to pay for sectarian education. The Institute for Justice, a libertarian law firm that represented the Raymond families, has said that it will ask the U.S. Supreme Court to review the Maine court ruling.

Last week the Ohio Supreme Court ruled in Simmons-Harris v. Goff that a school voucher law in Cleveland did not offend the First Amendment even though it provided government funds to children to attend private religious schools. In that case, however, the court ruled that the government funds did not flow directly to sectarian schools, but were instead given to parents who then decided where to spend the money. Wisconsin and Arizona's high courts also upheld similar voucher programs against constitutional challenges.

Matthew Berry, a staff attorney for the Institute for Justice, said he was disappointed in the ruling, but hopeful that the U.S. Supreme Court would review the Maine law.

“We disagree with the decision,” Berry said. “There is clearly now a conflict between various state and federal courts and we want the U.S. Supreme Court to resolve this issue.”

The leader of the nonprofit group Americans United for Separation of Church and State lauded the federal ruling as a victory for all opposed to school vouchers.

“This is the highest court ever to hear a voucher case, and the justices found vouchers unconstitutional,” Barry Lynn, executive director of Americans United, said. “It is a monumental ruling in the battle over taxpayer support of religious schools.”

(Editor's note: The American Center for Law and Justice announced after this story was posted that it would appeal the decision.)