Federal Appeals Court Upholds Maine Law Denying Tuition Reimbursement for Religious School Students

November 3, 2020 Updated: November 4, 2020

A federal appeals court upheld a Maine law under which the state may offer tuition reimbursement to parents who enroll their children in private schools but not to parents who enroll their children in religious schools.

About half of U.S. states have some kind of tuition voucher program.

The parents who unsuccessfully challenged the state law, along with their attorneys at the Institute for Justice (IJ) and the First Liberty Institute, say they will appeal. The Oct. 29 judgment from a three-judge panel of the U.S. Court of Appeals for the 1st Circuit came in a 63-page ruling in a case known as Carson v. Makin.

“Today’s decision allows the state of Maine to continue discriminating against families and students seeking to attend religious schools and we will immediately appeal to the U.S. Supreme Court,” IJ senior attorney Tim Keller said in a statement.

“The Supreme Court’s recent decision in Espinoza prohibits religious discrimination in educational choice programs. Today’s decision is disappointing for families across Maine, but we are confident the Supreme Court will ultimately put a stop to it.”

But state officials praised the ruling.

“I am charged with the responsibility of ensuring that public funds allocated for education in Maine are spent within the legal and intended use of those funds,” Education Commissioner Pender Makin said in a statement. “I am pleased that the court has recognized the lawfulness of our fiscal stewardship.”

As a rural state, most of Maine’s school districts lack a high school. To work around this problem, the state lets parents seek tuition reimbursement, provided the school isn’t religious.

Maine operates the second-oldest school choice program in the United States. Since 1873, the state’s “tuitioning” system has paid for parents in towns too small to maintain public schools to send their children to the school of their choice—public or private, in-state or out-of-state. Until an unfavorable legal opinion was handed down in 1980, parents had been free to exercise their independent choice to select religious schools.

The case law of the Supreme Court has been moving in a direction opposite to that adopted by the 1st Circuit Court of Appeals in the present case.

On June 30, the Supreme Court found in Espinoza v. Montana Department of Revenue that a Montana tax credit program for people who donate to private-school scholarships could not exclude religious schools.

“A State need not subsidize private education,” wrote Chief Justice John Roberts. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The decision was “an important victory for religious liberty and religious equality in the United States,” U.S. Attorney General William Barr said in a statement.

“As the Court explained, religious people are ‘members of the community too,’ and their exclusion from public programs because of their religion is ‘odious to our Constitution’ and ‘cannot stand.’ We were pleased to see the Court agree with the Trump Administration that such blatant discrimination against religion has no place in our constitutional system,” Barr said.

Before that in 2017, the Supreme Court ruled in Trinity Lutheran Church of Columbia, Inc. v. Comer, that a Missouri program that denied a grant to a religious school for playground resurfacing, while providing grants to similarly situated nonreligious organizations, violated the Free Exercise Clause.

The court opinion in Carson v. Makin was written by U.S. Circuit Judge David Barron, an Obama appointee. U.S. Circuit Judge Bruce Selya, a Reagan appointee, and former U.S. Supreme Court Justice David Souter concurred in the ruling. (Retired Supreme Court justices are allowed to hear cases in federal appeals courts.)

Barron distinguished the Maine program from the Missouri and Montana programs, saying those programs refused subsidies to schools simply because they were church-owned, without regard to whether the education had a religious character to it.

The Maine program blocks subsidies only if the school’s teachings are explicitly religious.

The state’s “focus is on what the school teaches through its curriculum and related activities, and how the material is presented,” Barron wrote.

“Sectarian schools are denied funds not because of who they are but because of what they would do with the money—use it to further the religious purposes of inculcation and proselytization.”

Looking at the two schools in the litigation, the judge wrote that both will not hire teachers who are homosexual, and one “has a mission of ‘instilling a biblical worldview’ in its students, with religious instruction ‘completely intertwined’ in its curriculum and the Bible as its ‘final authority in all matters.’”

The other “provides a ‘biblically-integrated education’ and has an educational philosophy ‘based on a thoroughly Christian and biblical worldview,’” he wrote.

The idea behind the Maine program is to make sure students in districts that lack a public high school receive an education “roughly equivalent to the [secular] education they would receive in public schools,” he wrote.

The families claim they’re being punished for being religious, but “nothing … suggests that the government penalizes a fundamental right simply because it declines to subsidize it.”

Zachary Heiden, chief legal counsel of the American Civil Liberties Union of Maine, previously weighed in on the state’s side.

“It is not the state’s job to teach children how to pray or how to practice religion, but it is the state’s job to avoid funding entities that promote discrimination.”