Parents urge Supreme Court to rule that Maine’s tuition aid program must include religious schools

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A group of parents in Maine seeking state tuition assistance to put their children in a religious private school have asked the United States Supreme Court to rule on their behalf.

At issue is a state provision that only allows for tuition assistance if a private school is "nonsectarian in accordance with the First Amendment of the United States Constitution."

The First Liberty Institute, the Institute for Justice, and others filed the appeal on behalf of the families to the Supreme Court on Friday in the case of Carson v. Makin.

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“By singling out religion — and only religion — for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” said Institute for Justice Senior Attorney Michael Bindas in a statement.

“By allowing nominally religious schools to participate but excluding schools that actually provide a religious curriculum, Maine is making governmental decisions about how religious is too religious. Government should not have that power.”

In 2018, a group of parents in Maine sued over a ban on state tuition assistance for sending children to any private school that includes sectarian aspects to their curriculum.

The plaintiffs include the Carsons and the Gillises, who enroll their children at Bangor Christian School, and the Nelsons, who want to transfer their daughter from a nonsectarian private school to Temple Academy, where their son is already enrolled.

Eventually, the Gillises were removed from the suit as their daughter graduated from high school during the legal proceedings and was no longer potentially eligible for the tuition assistance.

In June 2019, U.S. District Court Judge Brock Hornby ruled against the parents, concluding that “Maine’s educational funding program is constitutional.”

Last October, a three-judge panel of the U.S. Court of Appeals for the First Circuit unanimously upheld the Hornby decision, with Circuit Judge David Barron authoring the opinion.

In the panel opinion, Barron said that while the U.S. Supreme Court had ruled in Trinity Lutheran Church of Columbia v. Comer that a religious school could not be barred from state aid, the high court did not address explicitly religious uses for state funding.  

Barron also concluded that the Supreme Court decision Espinoza v. Montana Department of Revenue, which ruled that religious schools can qualify for a state tax credit program, differentiated between “discrimination in handing out school aid based on the recipient's affiliation with or control by a religious institution” and “discrimination in handing out that aid based on the religious use to which the recipient would put it.”

“… this restriction, unlike the one at issue in Espinoza, does not bar schools from receiving funding simply based on their religious identity — a status that in and of itself does not determine how a school would use the funds that it receives to provide educational instruction,” stated Barron.

“Instead, we understand this restriction to bar BCS and TA from receiving the funding based on the religious use that they would make of it in instructing children in the tuition assistance program.”

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