BACKGROUND
Maine law compels children ages 6 to 17 to attend school, be it public, private, or homeschool. The Maine Constitution also requires municipalities to support and maintain public schools “at their own expense.” Students have the right to attend a district outside of their home district, and school boards may approve a student’s request to transfer to another School Administrative Unit (SAU) than attend the one in which they reside. For these transfers, Maine law clarifies that the “student’s parent or guardian shall pay the cost of tuition and transportation.”
“Town-tuitioning” is a mechanism that allows school-age children in Maine who reside in a municipality that does not operate its own schools, or contract with another school or district to educate resident children, the option to attend a public or private school of their choice (under certain conditions), with public education dollars following the child to the chosen school. Maine’s town-tuitioning law has been on the books since 1873, making it the second-oldest school choice program in the nation behind Vermont’s own town-tuitioning law.
Town-tuitioning is a public benefit that empowers families residing in towns which utilize it to pursue the best educational option available, regardless of their ZIP code or financial status. For more than 100 years, students living in municipalities which utilize the program could be reimbursed by their town to attend any school of their choice: private or public, religious or secular. State law sets the maximum tuition allowed to be paid for elementary and secondary students.
In January 1980, at the request of a legislator, Maine Attorney General Richard S. Cohen issued an advisory opinion concluding that allowing sectarian schools to receive town tuition would infringe on the Establishment Clause under the First Amendment of the US Constitution, which prohibits the state’s establishment of religion. Agreeing with the AG’s interpretation, the legislature subsequently amended the law to prohibit sectarian schools from receiving town-tuition dollars for education.
Challenges to this law, known as Maine’s “sectarian exclusion,” have been denied writ of certiorari, or a spot on the US Supreme Court’s docket, until this year. In 2021, the Court agreed to hear Carson v. Makin, a suit filed by three Maine families who currently send their children to accredited private schools designated as sectarian and were denied public tuition by their town for that education.
Maine Policy Institute has submitted an amicus curiae (friend of the court) brief in support of striking down the sectarian exclusion so families may pursue the state-accredited education of their choice. By discriminating against certain schools solely based on their religious status and limiting a public benefit on that basis, the state unfairly limits educational opportunities and interferes with Mainers’ right to Free Exercise under the First Amendment of the US Constitution.