Legal experts believe Maine is doomed to lose religious school funding case

Legal experts have predicted that the U.S. Supreme Court will find that Maine’s ban on funding religious schools violates the U.S. Constitution after oral argument before judges on Wednesday.

Maine Attorney General Aaron Frey said the state “has made a compelling case for the constitutionality of Maine’s public education system,” but failed to predict how the court would rule next year .

The case, originally filed in federal court in Bangor in 2018, challenges a state law under which cities without public high schools pay tuition fees so that local students can attend a public or private school in their area. choice in another community as long as it is not a religious school.

The lawsuit, filed by two groups of parents, David and Amy Carson of Glenburn and Troy and Angela Nelson of Palermo, sought public tuition fees for their children to attend Christian schools in Bangor and Temple Academy in Waterville, respectively.

A federal judge in Maine ruled for the state in June 2019, and the 1st U.S. Court of Appeals upheld its ruling.

The legal question depends on whether, in practice, Maine prohibits public money from going to a school because of its religious status or because it would use the money to teach religion.

Carson v. Makin is one of the few Maine cases that has gone to the High Court. Court observers said this could further define how a conservative 6-3 majority views the separation of church and state.

Dmitry Bam, associate dean of the University of Maine Law School, said after the arguments that the majority of judges were skeptical of Maine’s arguments.

“For the Conservative justices, this case was largely indistinguishable from past cases supporting school choice programs, and they didn’t seem to give much weight to Maine’s distinction that it is really just about ‘a narrow category of public funding for public education,’ Bam said. .

It was clear that Justices Amy Coney Barrett and Brett Kavanaugh, both appointed by former President Donald Trump, viewed the Maine Tuition Program as a school choice program, “not an education outsourcing. public to private entities, ”he said. “The tribunal also seemed skeptical of the distinction between status and use, and I think this case is more a ‘status’ issue than a ‘use’ issue.

Matthew Gagnon, director of the Maine Policy Institute, a conservative think tank, called the state’s argument over status versus use “a distinction without a difference.”

“Religious discrimination is religious discrimination,” he said. “The High Court ruled that a state does not need to subsidize private education, but once it does, it cannot disqualify certain schools just because they are religious. This is exactly the discrimination that occurs in the city of Maine tuition program.

Zachary Heiden, a lawyer with the American Civil Liberties Union of Maine, agreed with Bam’s assessment that most judges were “skeptical” about the state’s position.

Heiden said the case was unusual compared to other religious school cases the court considered because it was brought by parents and not by the schools themselves.

“There is no evidence that these schools wish to participate in the [public funding] program, ”he said.

This would minimize the impact of a decision that the state should fund religious schools, according to Frey.

If Bangor Christian and Temple Academy were to accept public money in the future, they would have to comply with Maine’s human rights law, which prohibits refusing to hire someone because of their sexual orientation or of his gender identity, he said.

Under a package of changes to Maine’s human rights law that came into effect on October 18, religious schools that accept public funds are prohibited from discriminating against students and staff. LGBTQ, he said. If they accepted public money, they couldn’t, for example, deny admission to a transgender student or refuse to hire a gay staff member.

“These schools want to continue to discriminate against individuals based on their status in a protected classroom and this is inconsistent with the protections given to all Mainers under the MHRA,” Frey said.

Amy Carson, a plaintiff in the case, said she was happy her family had agreed to be part of the case, but was surprised at how long it took to get to the State Supreme Court -United.

Her daughter, Olivia, now 19, graduated from Bangor Christian Schools last spring.

While the court judges seemed clear in their inclinations on Wednesday, “it’s never a good idea to draw conclusions about how a case is going to come out on the basis of oral arguments,” Heiden said.

“The case is more likely to be decided on the arguments of the briefs.”

A decision is not expected until spring.

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