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Lawsuit seeks to undo exclusion of religious schools from Maine’s school choice program

Maine’s town tuitioning program, first adopted in 1873, is the second oldest school choice program in the country. The program allows students who live in towns that do not operate a secondary school to attend a public or private secondary school of their choice.

If a town does not maintain a public secondary school, it has the option of contracting with a different public or private school for the education of its resident secondary school students, or sending tuition payments on behalf of students to the secondary institution of his or her choice.

For more than a century, the program gave Maine families true independent choice when it came to educating their children. But in 1982, in response to an opinion issued two years earlier by Maine Attorney General Richard Cohen stating that paying tuition for students to attend religious schools violated the Establishment Clause in the First Amendment of the U.S. Constitution, the Maine Legislature codified an exclusion for sectarian schools into Maine’s school choice program.

As a result, students could no longer receive tuitioning support for choosing to receive education at a religious school. For private secondary schools to receive payment through the program, they must be nonsectarian. This remains true today.

However, in light of recent decisions made by our nation’s highest court, attorneys at the Institute for Justice (IJ) are – for the third time in roughly two decades – challenging the religious exclusion in Maine’s school choice program.

On Aug. 20, attorneys at IJ, along with co-counsel from the First Liberty Institute, filed Carson et al. v. Hasson on behalf of the Carson, Gillis and Nelson families of Glenburn, Orrington and Palermo, respectively, to end the exclusion once and for all.

The move to file suit for the third time in Maine comes in response to the U.S. Supreme Court’s 2017 ruling in Trinity Lutheran Church v. Comer, a case that involved a Missouri state grant program that reimbursed schools for resurfacing playgrounds with recycled tires. Writing in a 7-2 majority, Chief Justice John Roberts stated that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution . . . and cannot stand.”

In past decisions, the Supreme Court has ruled that school choice programs like Maine’s – which allow parents to independently choose where their children receive schooling – do not run afoul the Establishment Clause.

Prior to the 5-4 ruling in Zelman v. Simmons-Harris that explicitly affirmed the constitutionality of tuition payments to sectarian schools in religion-neutral school choice programs, the Supreme Court had held that similar government programs are “not readily subject to challenge under the Establishment Clause if it is neutral with respect to religion and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice.”

Maine’s school choice program does not exclusively provide assistance to religious persons, nor does it require that families choose religious schools for their children if they are eligible for tuitioning support under the program. In fact, prior to the religious exclusion codified in 1982, the program was neutral with respect to religion; now it explicitly discriminates on the basis of religion.

Among the plaintiffs in Carson et al. v. Hasson are Alan and Judy Gillis, who have lived in Orrington for 25 years and pay out of pocket to send their daughter to Bangor Christian Schools. The Gillis family cannot receive assistance to send their daughter to Bangor Christian Schools through Maine’s town tuitioning program because it is a sectarian institution.

Alan and Judy Gillis, of Orringon, have joined in a lawsuit with two other Maine families to challenge the exclusion of religious schools from Maine’s school choice program. Their daughter, Isabella, attends Bangor Christian Schools. (Photo: Institute for Justice)

“It seems accepted to discriminate against religion. I’d say it’s pretty well tolerated,” Judy Gillis said.

“We’ve never sued anyone in our life, nor were we financially prepared to do so,” Alan Gillis said. “But when the opportunity presented itself, we knew it was the right thing to do.”

The couple pays $4,950 annually to send their daughter to Bangor Christian Schools; a bargain compared to per pupil spending rates in Maine public schools. A 2018 assessment of state education spending conducted by the Portland Press Herald found that the average statewide cost to educate a child for one year in Maine is $13,472.91.

For the Gillis family, the decision to send their daughter to Bangor Christian Schools was never about the money, or who ultimately foots the bill for their daughter’s education.

“This is a matter of principle to us,” Judy Gillis said. “But we do realize that the out-of-pocket costs of sending a child to a sectarian school could be a factor for other families down the road.”

While the Gillises applaud Bangor Christian Schools for being “good stewards of their money,” the reason they moved their daughter out of Hampden Academy and to Bangor Christian Schools is because the sectarian school is a better fit for their daughter’s lifestyle and personal beliefs.

“Where she used to be shunned due to her beliefs, she now gets affirmation,” Judy Gillis said. “Bangor Christian was always on our radar. If we knew how good of a fit it would be, we would have sent her there in ninth grade.”

Alan and Judy Gillis say that their daughter is thriving in her new learning environment because the small setting suits her quiet personality, and because she is now surrounded by people who share her values. According to the Gillises, their daughter now has a close group of friends that she prays with and enjoys the volunteer work she and her classmates regularly engage in.

Without choice, however, their daughter could have been stuck in a school where she was struggling to succeed. Alan and Judy say that school choice played a “big role” in their decision to settle in Orrington 25 years ago and wish other families had the opportunity to choose where their children receive an education.

“If schools had to work harder for their money, I think you’d see better results,” Alan Gillis said.

The American Civil Liberties Union (ACLU) in late October filed a motion to intervene in Carson et al. v. Hasson. U.S. District Judge D. Brock Hornby denied the ACLU’s motion but is allowing the group to file an amicus brief outlining their position, according to the Press Herald.