Commentary: End Discrimination in Maine Against Religious School Families

Parents scored a victory in June 2020 when the United States Supreme Court ruled that school choice programs must be religion neutral.

The notice meant the government should neither favor nor oppose Maine farmers Troy and Angela Nelson, who prefer religious education for their children. Sadly, government-led discrimination against the couple continued in Palermo, a small town outside of Augusta that does not have public high schools.

Maine allows tuition assistance in such situations, allowing parents to send their children to public or private schools of their choice. The Nelson’s found the best solution for their family at Temple Academy, a sectarian school near Waterville, but the state excludes educational service providers who teach from a religious perspective.

The emphasis on non-sectarian education is relatively new. Maine started its “city class” program in 1873, and for more than 100 years the state has let parents choose secular or religious options. The hands-off approach ended in 1980, when the state chose religious schools and prohibited parents from choosing them.

No longer having an alternative, the Nelson’s moved to a secular private school. They also partnered with the First Liberty Institute and our company, the Institute for Justice, and fought back in federal court along with two other families facing similar discrimination.

Their legal argument is simple: rather than stay out of religion, Maine took sides, violating the Free exercise clause of the First Amendment.

Something similar happened in the recent Supreme Court case, Espinoza v. Montana Department of Revenue, in which the Institute for Justice set a historic precedent on behalf of three Montana families. The decision ended a government policy that prohibited parents from choosing schools simply because of their religious status.

Four months later, however, the 1st US Court of Appeals went in the opposite direction in the Nelsons case and upheld the exclusion of religious schools. To reach decision, the appeals court made an odd distinction between religious “status” and “use”. The appeals court recognized that Maine cannot discriminate against religious schools, according to Espinoza, but it upheld Maine’s ability to discriminate against schools that teach from a religious perspective.

The Nelsons see a distinction without a difference.

By definition, religious schools teach religious things. Otherwise, they wouldn’t be religious. Using the same twisted logic, the Nelson’s could enroll their children in a football league that doesn’t play football. After each practice, they could go to an ice cream shop that does not serve ice cream.

The 6th and 10th Circuits have already rejected the status-use distinction, and Supreme Court Judge Neil Gorsuch has expressed his own skepticism to Espinoza. A little over a year later, on July 2, the High Court agreed to settle the case in Nelsons, Carson v. Makin.

In addition to ending the debate over the use of the statute, the case will rest on a second distinction: that parents – not the government – choose Maine’s Tuition Assistance Program schools.

While a constitutional conflict could arise if the government required children to receive a religious education, parents can make that choice under a generally available public assistance program, which is their right.

New Hampshire, which has educational cities similar to Maine, recently agreed. After an institute for justice trial and months of legislative debate, New Hampshire Gov. Chris Sununu signed a bill July 7 which ends the exclusion of religious schools from the state student aid program.

Now New Hampshire parents can decide for themselves what is best for them. The Nelson could too, if Maine stopped playing puns and returned power to the people.


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