Educators are anxiously awaiting a major decision in a Maine-centered U.S. Supreme Court case, due out this month, that could roll back restrictions on the use of public funding for religious and other private schools.

The high court is considering an appeal in a case called Carson v. Makin, which stems from a 2018 lawsuit brought by three Maine families against the state Department of Education. The families’ lead attorney is the Institute for Justice, which has won similar school choice and religious liberty challenges at the current conservative-majority Supreme Court in recent years. 

This story was originally published by The Maine Monitor.

The Maine Monitor is a local journalism product published by The Maine Center for Public Interest Reporting, a nonprofit civic news organization based in Augusta.

“This really has been just a push from those that want to privatize public education and have vouchers,” said Grace Leavitt, a Spanish teacher and current president of the Maine Education Association. “It will funnel public tax dollars away from our public schools.” 

Maine doesn’t have a voucher program, which would give families money to opt out of local public schools and attend a private school instead. The law at issue in this case is more limited, focused on students in mostly rural districts that don’t have a public high school at all. 

State statute requires such districts, if they don’t have an agreement to use a public school in another town, to pay tuition for students to get an equivalent education at an approved private school elsewhere, in or out of the state. 

As of October 2020, according to court filings, more than 4,000 of these students attended one of Maine’s quasi-public academies, which receive 60% of their funding from the state. Fewer than 700 more students used the tuition program to attend other private schools. 

Schools that receive this state funding have to meet educational and managerial standards. Since the 1980s, they’ve also had to be “nonsectarian,” in line with the state’s definition of its desired basic education as religiously neutral. This case could reshape if and how these private schools can receive state funding, and how the state oversees them.

The families that sued over this law, led by David and Amy Carson of Glenburn, a small Bangor suburb, say Maine’s law unfairly excludes religious schools like the ones where they want aid to send their kids. They argue this violates their First Amendment rights. 

“No student should be denied educational opportunity simply because, for their situation, a religious education makes sense. Yet that’s precisely what Maine is doing,” said the families’ lead attorney with the Institute for Justice, Michael Bindas, in a video about the case last year. “It’s certainly something that the Supreme Court should make clear is not allowed.” 

Lower courts disagreed, ruling in favor of Maine education commissioner Pender Makin and past precedent to find the state is within its rights to limit the tuition assistance program’s scope. 

But members of the Supreme Court’s conservative majority have strongly signaled, in December’s oral argument and related decisions, that they may overturn those earlier rulings and use this case to expand the constitutionality of public funding for religious uses. 

A Maine Department of Education spokesperson declined to comment before a ruling is issued.

The appeal focuses on two of the Maine families in the original suit. The Carsons both attended Bangor Christian School as kids, according to the Institute for Justice, which describes itself as a “libertarian” nonprofit public interest law firm based in the Washington, D.C. area. 

The Carsons’ hometown of Glenburn does not have its own high school, so they paid to send their daughter Olivia to Bangor Christian School, despite being eligible to get public money for a nonsectarian private school. They say in the case that they believe Bangor Christian’s religious affiliation would rule it out of the tuition program. 

The other plaintiffs, Troy and Angela Nelson, believe they would be denied from using public money to send their daughter to the private Temple Academy in Waterville, which teaches the “thoroughly Christian and Biblical worldview” that they say they want for their kids. 

Steve Bailey leads the Maine School Management and School Boards Associations, which filed one of many amicus briefs with the Supreme Court urging against such a decision. He said he believes the families behind the suit are well-intentioned, but fears a decision in their favor would “wreak havoc” on Maine’s public education system. 

Bailey said he’s concerned about two major implications: that already limited public school funding will be diluted by families newly able to get aid to attend private religious schools, and that those schools’ curricula will be significantly outside Maine’s agreed-upon educational goals. 

“That amount of money that’s there for supporting students who attend public schools would then be allowed to be spread over a much different and potentially broader population,” Bailey said last week. “I think it’s an attempt to broaden or stretch beyond the intent, as well as the responsibility, of the state and towns to be paying for religious education.”

Maine assistant attorney general Sarah Forster also focused on public education in her arguments, saying the tuition program aims to ensure free education in a heavily rural state. 

“In excluding sectarian schools, Maine is declining to fund a single explicitly religious use: an education designed to proselytize and inculcate children with a particular faith,” Forster wrote. She had support in amicus briefs from the Biden administration, state of Vermont and others. 

Forster argues it’s also unclear if the Carsons’ and Nelsons’ religious schools of choice would even accept public money. Representatives for both Bangor Christian and Temple have testified that they would refuse to do so if, to comply with other state laws, they would have to change internal policies that bar the hiring of gay teachers and discriminate against LGBTQ students. 

The MEA’s Leavitt said this issue is exactly the kind of thing that an equitable, nonsectarian public school system is designed to avoid.

“We want an educated citizenry. That’s what our public education system is about,” she said. “We don’t want to have schools that are excluding students or not welcoming all students.”