Federal judge rules Maine does not have to subsidize religious schooling

Wednesday, August 19, 1998

For the second time this year, a judge in Maine has ruled that a state program providing funds to enable rural parents to send their children to high schools does not have to be expanded to include private sectarian schools.

U.S. District Judge Brock Hornby ruled last week in Strout v. Maine Department of Education that the state is not required to pay for religious-school tuition in districts where there are no public high schools.

Before 1981, the state's rural school-choice program provided funds for tuition at parochial schools. State lawmakers changed the law, however, after the state's attorney general issued an advisory opinion that said state-funded religious schooling violated the First Amendment's principle of separation of church and state as well as the state constitution.

The program's exclusion of religious schools has been challenged by two families – both arguing that the exclusion of religious schools violated their religious-liberty rights. Specifically, both families' attorneys argued that citizens have a constitutional right, under the free-exercise clause of the First Amendment, to use religious schools or other religious entities. Moreover, they claimed that by denying parents state funds to send their children to private religious schools, the state impermissibly infringed upon their free exercise of religion.

Hornby's ruling affected a family in Minot where there is no public high school. The family sought reimbursement from the state for tuition paid to a Catholic high school. The Maine Education Department denied the reimbursement, noting that the rural school-choice program excluded private religious schools. The family, represented by the American Center for Law and Justice, a national education and legal firm devoted to religious-liberty rights of Christians, sued the Department of Education in federal court.

Hornby, in a brief opinion, dismissed the suit. The federal judge concluded that although the family was free to send its children to a religious school, it did not have a constitutional “right to require taxpayers to subsidize that choice.”

In May, a state court judge also concluded that the rural-choice program did not have to provide public funds for sectarian schools. Families from Raymond represented by the Institute for Justice, a Washington, D.C.-based libertarian law firm, sued the state, also seeking reimbursement for tuition paid to a private Catholic school.

Superior Court Judge Nancy Mills did not buy the families' claims that their free exercise of religion had been subverted by their being refused state funds for their children's tuition at the Catholic school.

“The court agrees that the plaintiffs have not shown that sending their sons to Cheverus (Catholic high school) is mandated by their religion,” Mills wrote.

The judge concluded that the state's “failure to subsidize an education at Cheverus does not constitute a substantial burden on the exercise of religion.”

The Institute for Justice has said an appeal would be filed in the state court action. Richard Komer, the group's senior litigator, maintained that the rural-choice program discriminated against religion in violation of the free-exercise clause.

Vincent McCarthy, senior counsel for ACLJ Northeast, said that a notice of appeal has been filed with the 1st U.S. Circuit of Appeals. McCarthy added that the ACLJ filed the suit in federal court in hopes of eventually getting the case to the U.S. Supreme Court.

Rob Boston, assistant communications director of Americans United for Separation of Church and State, a national civil rights group, derided the argument that Maine had a constitutional duty to provide funds for tuition at parochial schools.

“The argument made by the ACLJ and Institute for Justice turns constitutional law and common sense on their heads,” Boston said. “What they are essentially saying is that government has an obligation to assist people with their free exercise of religion by funding religious schools. No court is going to buy such a strange argument.”

McCarthy said that Maine's failure to reimburse parents who send their children to sectarian schools discriminated and unfairly burdened religion.

“The Supreme Court has consistently held that religion is to be treated neutrally,” McCarthy said. “Maine places at a disadvantage religion and parents who choose to send their children to religious schools. The rural-choice program does not treat religion neutrally. In fact, it singles out and stigmatizes religion by saying that there is no place at this table for people with a religious point of view.”