NCPA - National Center for Policy Analysis

Maine Court's Decision Jeopardizes School Choice

May 3, 1999

In an April 23 ruling, Maine's Supreme Judicial Court upheld the state's "tuitioning" laws -- which require that religious schools be excluded from participating in tuition assistance programs. Critics say the Court got it wrong; the Constitution's establishment clause -- "Congress shall make no law respecting an establishment of religion" -- does not require discrimination against religion.

Constitutional scholars say a long line of U.S. Supreme Court decisions makes it clear that even-handed treatment of religious institutions is perfectly consistent not only with the separation of church and state but also with the nondiscrimination and equality principles enshrined in the Constitution.

  • For more than 200 years, Maine paid for students who lived in areas without public schools to attend the school of their choice -- public or private, religious or secular.
  • But in 1981, the state decided that religious schools should be excluded from the voucher program.
  • A couple whose son attends a Catholic school challenged that policy in court -- arguing that the state cannot single out and discriminate against parents who want their children to attend schools with religious affiliation.
  • In a long line of cases, the Supreme Court has held that localities can pay for student bus transportation to religious schools, extend tax deductions for educational expenses to religious-school tuition, permit students to use government-funded rehabilitation grants at religious colleges, and provide a sign-language interpreter to a deaf child whose parents choose to send him to a Catholic school.

Most recently, the Supreme Court repudiated earlier decisions that had required discrimination against religious schools in remedial-education programs.

Legal scholars anticipate that the Maine court's decision will wind up before the U.S. Supreme Court.

Source: Richard W. Garnett (attorney), "After 200 Years, School Choice Loses in Maine," Wall Street Journal, May 3, 1999.


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