Appeals court upholds Maine law barring private school tuition subsidies for “sectarian” education

by | Nov 10, 2020

The 1st U.S. Circuit Court of Appeals has upheld how Maine provides public education: utilizing nonsectarian private schools in areas without their own public school. The ruling, in Carson v. Makin, examined recent U.S. Supreme Court funding decisions that the plaintiff argued invalidated the sectarian restriction, but it concluded the program passes constitutional muster.

Maine’s constitution requires the state to provide an opportunity for every school-age child to receive a free public education. However, in many areas of the state there is no public secondary education option. To address that problem, state law allows for local governments to pay the private school tuition of an approved institution of the parent’s choice. To avoid government funding of religious education, the law includes a caveat that to receive state tuition assistance money under this program the private school must be “nonsectarian.”

The requirement that tuition payments under Maine’s program must go only to nonsectarian schools has withstood constitutional challenges in the past. But the appeals panel concluded that it should be re-examined in light of two intervening decisions by the U.S. Supreme Court – Trinity Lutheran and Espinoza. In Trinity Lutheran, the Supreme Court held that a state grant program for playground refurbishment could not exclude a church’s application for funds solely because it is a religious institution. In Espinoza, earlier this year, the Court held that Montana could not exclude religious schools from its tuition tax credit program.

Here, the plaintiffs claimed that Maine’s limitation on funding only nonsectarian schools should similarly be struck down. But the appeals court emphasized a number of significant differences in upholding the program.

For one, while the funding restrictions in Trinity Lutheran and Espinoza were based on the “religious status” of the recipient, the funding restriction in Maine is based on the “use” of the funds. The status-use distinction was central to the Supreme Court’s analysis. “[I]nquiry into whether a school is ‘nonsectarian,’” the appeals court wrote, “does not turn solely on whether it is religiously affiliated or controlled but depends instead on the sectarian nature of the instruction that it will provide to tuition assistance beneficiaries.”  

Second, the court explained that the nature of the program itself fundamentally differs from those the Supreme Court overturned. In Maine, the tuition assistance program is not available generally to parents who wish to choose private education. The program is intended to replace the public education requirement for those who have no public education option. If requiring public education itself to be nonsectarian is permitted, the court reasoned, then requiring this substitute offering to comply with that requirement is also allowed.

From the opinion:

Because Maine permissibly requires public educational instruction to be nonsectarian for reasons that reflect no hostility to religion, it betrays no hostility toward religion when it imposes a use-based “nonsectarian” restriction on the public funds that it makes available for the purpose of providing a substitute for the public educational instruction that is not otherwise offered.

Rather, it permissibly satisfies a commitment, rooted in its own founding charter, to pursue the wholly legitimate end of ensuring the distribution of the benefits of a free public education even to those who happen to live in places that cannot provide it of their own accord.

If this case is appealed to the U.S. Supreme Court, it will represent a new test of the limits of the Supreme Court’s new line of government funding cases. Stay tuned.