Maine’s school choice program attacked for excluding religious institutions

Tuesday, April 14, 1998

Five families in a rural town in Maine are trying to compel the state to provide tax dollars to send their children to parochial schools.

Before a state judge on Friday, the five Raymond, Maine, families argued that the state's rural choice program — which provides vouchers to students living in towns without public schools — subverts their First Amendment right to freely exercise religion because the law excludes religious schools from the voucher program.

“We are not attempting to exact anything from the state,” said Nicole Garnett, an attorney for the Institute for Justice, a Washington, D.C.-based libertarian law firm representing the families. “We only ask that the entitlement be distributed in a non-discriminatory way.”

Last year, Cynthia and Robert Bagely asked Raymond town officials to pay for their sons' tuition at Cheverus High School, an all-boys Catholic school. Town officials, however, denied the request, citing the state law which bars tax dollars from being used to fund parochial schools. The Bagleys and four other Raymond families hired the Institute for Justice and filed a lawsuit in superior court, alleging both the law and the town officials violated their right to free exercise of religion.

The Institute for Justice is attempting to overturn the state statute by suggesting “the Supreme Court has consistently held that laws that single out religion for discrimination violate the First Amendment's right to free exercise of religion.”

None of the Supreme Court cases the group cites, however, involved voucher programs. So far, no federal court has approved a voucher plan that provides money to parochial schools.

John West, a lawyer for the state, told the court the First Amendment prohibits the state from funding religious schools.

“No court has ever held that the free exercise clause, or the First Amendment in general, requires states to fund religion on the same basis as non-religion,” West said.

Garnett said the Maine program is different from voucher programs in other states and that she believes those programs will be found constitutional.

“The Supreme Court has yet to pass on the constitutionality of a voucher program,” Garnett said. “I think the court will ultimately uphold those laws as constitutional.”

Garnett also questioned the state's argument that the rural choice program subverts the separation of church and state.

“Fewer than 2 percent of the students chose to go to religious schools,” she said. “There is no evidence that the program will result in large amounts of tax dollars going to religious schools.”

The group is also fighting a Vermont program similar to Maine's. Vermont's law, however, does allow tax dollars to be used at parochial schools. But the state's education department prompted a lawsuit by voucher proponents when it yanked funding for religious schools citing the First Amendment's establishment clause. The state's high court heard oral arguments in March regarding the program.