It is time for Maine to correct a nearly 40-year-old mistake and allow parents to once again use public tuition dollars at any qualified school. As many in Maine are aware, in small towns that cannot support a public high school, local school districts provide tuition payments for students to attend the public or private secondary school of their choice. For well over a century under this system, Maine parents could choose a religious school for their children’s education.
That freedom ended in 1980 when Maine’s then-attorney general issued an opinion stating that including religious schools was a violation of the U.S. Constitution. But recent U.S. Supreme Court decisions show that opinion was incorrect and unconstitutional.
First, in 2002, the Supreme Court declared that an Ohio school choice program that let parents freely and independently select a private religious school for their children did not violate the Constitution. This result made it clear that the basis for the 1980 ruling was wrong and that Maine’s century-old system did not need to be altered.
A more recent Supreme Court opinion goes a step further to demonstrate that the current system is, in fact, unconstitutional. In a 7-2 ruling last year, the Supreme Court determined that a church school run by Trinity Lutheran in Missouri could not be excluded from a state program that provides money to make playgrounds safer by resurfacing them with rubber from used tires. Chief Justice John Roberts, writing for the majority, 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.”
Interestingly, the law the court overturned was founded on Missouri’s so-called Blaine Amendment. Mainers familiar with the state’s history know that James G. Blaine is perhaps the most accomplished politician the state has ever produced. He served as the speaker of the U.S. House and a U.S. senator and is one of only two people to serve as U.S. secretary of state under two presidents.
However, the amendment in his name comes from a dark period of American history when nativist politicians were excessively worried about the influence of Catholic education. Blaine’s proposed amendment would have explicitly prohibited government funding for so-called sectarian schools, while preserving the Protestant-oriented public schools of the time. And indeed, the Supreme Court recognized that, at the time, “sectarian” was code for Catholic.
Blaine’s proposed amendment passed in the House but narrowly failed in the Senate. Despite the failure at the federal level, similar language was added to most state constitutions. Yet, Maine was one of a handful of states that never adopted a Blaine Amendment. Unfortunately, the Maine attorney general ruling not only discriminates against the Catholic faith, but prohibits parents from choosing any religious school under Maine’s tuitioning system.
The Supreme Court’s ruling in Trinity Lutheran makes it clear that the state cannot withhold tuitioning money from parents who want their children to attend otherwise qualified religious schools. That is why the Institute for Justice and the First Liberty Institute have paired with Maine families from the towns of Orrington, Glenburn and Palermo to challenge this restriction in federal court.
The Institute for Justice twice before challenged these restrictions in state court in 1997 and 2002. Unfortunately, the Maine Supreme Judicial Court ruled against the parents both times. Now, with the Trinity Lutheran decision, it is clear these rulings were in error.
Parents’ right to use tuition dollars at the school of their choice never should have been taken away. Maine’s tuitioning system should once again provide parents the freedom to choose the school that best fits their child’s needs. We trust that the court will look at the recent precedents and vindicate their rights.
Tim Keller is a senior attorney with the Institute for Justice. Lea Patterson is an associate counsel with the First Liberty Institute.
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