Maine school choice lawsuit replicated in New Hampshire, Vermont


A pair of lawsuits that mirror a Maine-based legal challenge (currently pending in the First Circuit Court of Appeals) has been filed in New Hampshire and Vermont over last two weeks. The Institute for Justice (IJ), which represents the three Maine families who are challenging the sectarian exclusion within Maine’s town tuitioning program, also represents the plaintiffs of the cases originating in New Hampshire and Vermont.  

All three cases seek to advance school choice and religious freedom by overturning laws or constitutional provisions that prevent tuition payments from flowing to religious schools within all three state’s town tuitioning programs.

Vermont and Maine have the two oldest town tuitioning programs in the country, launched in 1869 and 1873, respectively, while New Hampshire launched its program in 2017. All three programs enable students who reside in towns that do not operate their own schools to attend any public or private school of their choice. The “sending” town sends tuition payments to the “receiving” school, which can cover some or all of the cost of the student’s attendance.

The lawsuit in New Hampshire was filed on behalf of the Griffin family on Sept 3. Dennis and Cathy Griffin, who live in Croydon, New Hampshire, cannot receive assistance under the state’s town tuitioning program because the school they chose for their grandson, Clayton, is sectarian.

“The school the Griffins have chosen for their grandson is qualified to receive funds in every way except that it is religious. Under the recent precedent, that is a clear violation of the First Amendment,” said IJ Senior Attorney Tim Keller.

The case in Vermont was filed on behalf of Michael and Nancy Valente and two other families. The Valantes live in Mount Holly, Vermont and cannot receive assistance to send their son Dominic to the school of their choice because it is a religious school.

“In July, the U.S. Supreme Court made it clear that states cannot exclude religious schools from educational choice programs—that includes Vermont’s town tuitioning program,” Keller said in a news release. “The school the Valentes chose for their son meets every qualification except one—it is religious. According to the U.S. Supreme Court, that’s unconstitutional.”

All three cases come in the wake of the U.S. Supreme Court’s decision in Espinoza v. Montana Department of Revenue, which directly challenges Blaine Amendments and similar state laws. Blaine Amendments prohibit public funds from flowing to religious schools and were born out of anti-Catholic bigotry in the 19th century. Named after James G Blaine, who represented Maine in the U.S. House and Senate in the mid-to-late 1800s, Blaine Amendments have been passed in more than 30 states while others (like Maine) have passed similar provisions in statute.

In Espinoza, the high court ruled that state laws and amendments that restrict public aid from flowing to private religious schools in school choice programs are unconstitutional. Writing for the majority, Chief Justice Roberts said, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The plaintiffs in the Maine-based school choice lawsuit, Carson et al v. Makin, still await a decision from the First Circuit Court of Appeals.


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