Lawsuit challenging exclusion of religious schools from town tuitioning program headed to higher court


On Wednesday, June 26, United States District Court Judge D. Brock Hornby issued a ruling that upheld a current law that prohibits state funds from being used as tuition to fund a child’s education at a religious secondary school through Maine’s school choice program. However, Judge Hornby himself acknowledged the case, Carson et al v. Makin, will likely be settled in a higher court.

“We are grateful that Judge Hornby moved quickly to issue a ruling just two days after the hearing,” said Institute for Justice senior attorney Tim Keller, who is representing the plaintiffs in the case. “This fight against religious discrimination is headed to the First Circuit and then possibly to the Supreme Court.”

In order to understand the ruling issued last week, it is important to understand Maine’s town tuitioning program. Maine’s town tuitioning program was started in 1873, making it the second oldest school choice program in the nation. If a municipality neither maintains a public secondary school nor contracts for secondary school services, current Maine law requires a municipality to pay for a resident student’s tuition to a secondary school, either public or private. However in 1982, the Maine Legislature passed a law prohibiting public money from being used for certain secondary schools.

Then-Attorney General Richard Cohen wrote an opinion in 1980 stating that municipalities paying a child’s tuition to attend religious schools of their choice violated the Establishment Clause of the First Amendment. Two years later, in 1982, the Maine Legislature responded to the Attorney General’s opinion by enacting the law prohibiting municipalities from paying the tuition for a child to attend a sectarian school. 

This law has since been challenged numerous times without success in higher courts, however recent Supreme Court decisions indicate that the Maine Legislature may have been misguided in codifying Cohen’s opinion. 

In 2002, the Supreme Court ruled on a case very similar to the one Judge Hornby faced Wednesday. The case, Zelman v. Simmons-Harris, challenged the assertion that using public money to pay for a student’s tuition to a religious school violated the Establishment Clause of the First Amendment. In the majority opinion, Chief Justice Rehnquist wrote, “Three times we have confronted Establishment Clause challenges to neutral government programs that provide aid directly to a broad class of individuals, who, in turn, direct the aid to religious schools or institutions of their own choosing. Three times we have rejected such challenges.”

The three Establishment Clause challenges that Chief Justice Rehnquist spoke of are Mueller v. Allen, Witters v. Washington Department of Services for the Blind, and Zobrest v. Catalina Foothills School District. Each of the rulings in these cases were contingent upon whether the purpose, or effect, of the State’s law is to advance or inhibit religion. In the majority opinion, Chief Justice Rehnquist writes, “Mueller, Witters, and Zobrest thus make clear that where a government aid program 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, the program is not readily subject to challenge under the Establishment Clause.” 

Following the Zelman v. Simmons-Harris decision, the constitutionality of Maine’s prohibition on public funds being sent to religious schools by individual choice was again challenged in Eulitt v. Maine Department of Education, which eventually reached the First Circuit Court of Appeals. However, the First Circuit Court found that the Supreme Court’s ruling on Zelman v. Simmons-Harris was not significant enough to negate stare decisis. Thus, Eulitt V. Maine Department of Education is the current standard. 

The case decided by Judge Hornby, however,  also ties to the result of yet another Supreme Court decision. The 2017 Supreme Court case of Trinity Lutheran Church of Columbia, Inc. v. Comer held that it was unconstitutional—and a violation of the Free Exercise Clause of the First Amendment—to deny a school or daycare a generally available subsidy for rubberized playground material solely because they are operated by a church.

The Trinity Lutheran decision further supports the plaintiffs’ claim in Carson et al v. Makin that Maine’s tuitioning program in unconstitutional. It can be reasonably argued that if denying a generally available subsidy for playground material solely because the facility is operated by a church is unconstitutional, then the denial of a generally available subsidy for secondary school tuition because the facility is a religious school should also violate the Free Exercise clause. 

Despite the rulings in both Zelman v. Simmons-Harris and Trinity Lutheran Church of Columbia, Inc v. Comer, Judge Hornby ruled in favor of the State, upholding the current law. Judge Hornby wrote that he based his decision on the precedent set forth by Eulitt V. Maine Department of Education

He explained his decision to base the ruling on precedent, saying despite recent Supreme Court rulings, “As a Federal Judge, I must follow any decision from the Court of Appeals for the First Circuit directly on point, except in limited circumstances: ‘until a Court of Appeals revokes a binding precedent, a District Court within a circuit is hard put to ignore the precedent unless it has been unmistakably cast into disrepute by a supervening authority.’” 

While Judge Hornby’s decision was disappointing, it was expected, and the right one to make given the circumstances. The case has been destined for decision in a higher court since it was filed, and as previously mentioned, Judge Hornby noted as much in his opinion.

“It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even the Supreme Court,” he wrote.


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