What a SCOTUS ruling in favor of Maine families would mean for school choice, town tuitioning


Before the Supreme Court issues its final opinion for the October 2021 term in June, it will rule on a case involving public funding of private religious schools in Maine.

At issue in Carson v. Makin is whether a state statute that exempts sectarian schools from receiving public funding for tuition violates religious rights protected by the First Amendment.

Under state statute, parents who reside in towns that do not operate schools at their child’s grade level can enroll their child in a public or private school of their choosing, provided their town does not have an existing agreement with another district to educate its resident students. However, Maine’s town tuitioning program stipulates that private schools are eligible to receive public funds only if they are nonsectarian.

The state claims the exemption is in accordance with the First Amendment, but the Carson family, the plaintiffs in the case, allege the exemption violates the First Amendment’s free exercise clause.

Because of the state’s ban on allowing sectarian schools to receive public tuition dollars, the Carsons, who live in Glenburn, which like approximately half of school administrative units in Maine has no public secondary school, were unable to send their daughter to high school at the school of their choice, Bangor Christian Schools, and receive public tuition assistance.

During oral arguments, Michael Bindas, an attorney for the Institute for Justice who is representing the plaintiffs in the case, asked the court to apply strict scrutiny to Maine’s public tuition funding exemption for sectarian schools. Strict scrutiny requires the government to show it has a compelling interest in applying a law that infringes on protected Constitutional rights, which Bindas argued is baseless as applied to the free exercise clause.

Christopher Taub, Maine’s chief deputy attorney general, argued on behalf of the state Department of Education and cast the issue in the case as relating to access to a public education, rather than to religious discrimination. Taub said it was constitutionally insignificant that private schools sometimes provide a public education. 

The state also argued the plaintiffs lacked standing because their preferred school of choice indicated it would not participate in Maine’s public tuitioning program even if it were eligible.

During oral arguments, Taub indicated this is because of provisions within the Maine Human Rights Act (MHRA), which, even if the Supreme Court rules in favor of the plaintiffs and Maine’s sectarian exemption is struck down, would prevent public funds from flowing to some religious schools in the state. 

Maine’s Human Rights Act prohibits discrimination in education on the basis of sex, sexual orientation or gender identity, physical or mental disability, ancestry, national origin, race, color or religion. The MHRA states the “opportunity for an individual at an educational institution to participate in all educational, counseling and vocational guidance programs, all apprenticeship and on-the-job training programs and all extracurricular activities without discrimination” is a civil right that cannot be infringed. 

It also prohibits employment discrimination on the basis of sex, sexual orientation or gender identity, physical or mental disability, ancestry, national origin, race, color or religion. Under the MHRA, it is illegal to fire or refuse to hire an individual on these grounds.

It is in this context that the MHRA was brought up in Carson v. Makin

A respondents’ brief filed on behalf of Maine DOE Commissioner Pender Makin by Maine’s Attorney General’s Office notes that the MHRA’s prohibition on discrimination in hiring on the basis of sexual orientation would likely mean Bangor Christian Schools and Temple Academy, the schools at issue in the lawsuit, would have to change their operations to receive public funding. 

A foot note in the brief states that, even if the exclusion on sectarian schools receiving public funds is struck from Maine’s town tuitioning statute, the MHRA means religious schools looking to receive public funds “likely would no longer be free to refuse to hire homosexuals.”

The brief also notes that Temple Academy “would refuse to accept public money if it meant that it could no longer exclude homosexuals from teaching positions.” Part of the state’s argument that the petitioners lacked standing in the case rested on the unwillingness of the petitioners’ preferred schools to participate in the tuition program. 

As was noted by Bindas during oral arguments, the MHRA does explicitly state that its prohibition on sexual orientation-based discrimination in education does not apply to religious organizations that do not receive public funding.

Following oral arguments in the case on December 8, 2021, Attorney General Aaron Frey released a statement addressing the relevance of the MHRA to the case.

“Schools receiving taxpayer funds are appropriately subject to the Maine Human Rights Act (MHRA), which prohibits discrimination against individuals on the basis of several protected classes. The two religious schools that the parents in this case want to send their children to have made it clear that they are not interested in complying with the MHRA and, therefore, these schools have not even applied to the Maine Department of Education to be eligible to participate in Maine’s tuition program. Put differently, these schools want to continue to discriminate against individuals based on their status in a protected class and that is inconsistent with the protections afforded to all Mainers under the MHRA,” Frey said.

The Maine attorney general’s office had no comment on the case as of May 18, 2022.

For the 2021-2022 year, the Maine DOE approved 12 private elementary schools and 28 private secondary schools to receive public funds. Several schools, including Carrabassett Valley Academy, Hebron Academy, Maine Coast Waldorf School, North Yarmouth Academy, Thornton Academy, and Waynflete School, receive funds for both elementary and secondary students.

The state recognizes 15 private sectarian schools, 10 of them Roman Catholic and located within the church’s Portland diocese. Dave Guthro, communications director for the church’s Portland diocese, said the schools operated by the diocese and recognized by the state “don’t know yet” whether they would participate in the town tuition program if the exemption for sectarian schools is struck down because they don’t know what funding will entail or the details for receiving it.

“The diocese is certainly supportive of allowing families to have access to better educational choices. If space allows, the diocese would welcome families to enjoy the excellent educational experience that Catholic schools afford,” Guthro said. 

The state distinguishes between private schools that seek DOE approval and equivalent instruction schools, which are private schools that do not seek approval from the DOE. The agency recognizes approximately 60 equivalent private instruction schools in the state, many of which offer religious education, that could also potentially also still be excluded from receiving public funds because of the MHRA.


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