The U.S. Supreme Court’s recent ruling that Maine cannot exclude religious schools from a public tuition reimbursement program is creating new uncertainty for the state’s already limited authority over private schools of all kinds.  

The court issued its order Tuesday in Carson v. Makin, which determined the constitutionality of a Maine law requiring school districts that lack a public high school, most of them in rural areas, to pay tuition for students to go to private schools instead.

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.

In an opinion signed by the court’s six-person conservative majority, Chief Justice John Roberts reversed a federal appeals court ruling in favor of Maine and remanded the case to that court for reconsideration. He wrote that Maine’s requirement for private schools to be “nonsectarian” to receive funding violated a First Amendment right to free exercise of religion.

According to the Maine Attorney General’s office, the decision means the state legislature will likely need to change laws that govern private schools receiving public money. However, it’s still unclear whether the two religious schools at the center of the case — Bangor Christian and Temple Academy of Waterville — will take that funding if it meant they would have to change their policies that discriminate against LGBTQ students and staff. 

“The education provided by the schools at issue here is inimical to a public education,” said AG Aaron Frey in a statement Tuesday. “I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.” 

But some say the state’s current system of oversight of private schools isn’t rigorous. They argue that extending funding to religious schools could further strain this enforcement system or raise legal conflicts that will wind up eroding protections for LGBTQ students, as well as those who are Black, Indigenous or people of color. 

“Anybody and their brother could be receiving state funds, and if there’s no structure in place for oversight when there’s 30 or 40 schools, what about when it’s 200?” said Zach Kempthorne, whose extended family has decried what they saw as a lax state response to racism and other issues at Washington Academy in East Machias. “It’s going to pour gasoline on the fire.”   

‘Nowhere to go’

Officials in the AG’s office said they expect the Supreme Court ruling will open the door to a broad range of potential changes, beyond simply removing the “nonsectarian” rule at issue in the case. Changes could be in the offing regardless of the path forward for funding at the two schools in the case. 

Maine has an array of schools besides traditional public schools, including so-called “academies’’ that receive a high proportion of public funds but are private schools, and religious schools. 

The ruling could expand the number of private schools and students receiving tuition support from local school districts. Public education advocates say overstretched municipal budgets are unprepared to handle this change, but towns have few alternatives. 

In his opinion, Roberts suggested the state could offer new public schools or remote learning options if it wants to avoid sending money to religious schools. But Steve Bailey, the Maine School Management Association executive director, said it’s unlikely the state will expand public education this way. 

“Geography, size of school, staffing — all three of those are some significant issues right now,” he said. “In some of the more rural areas, your population and student enrollment continues to decline, and so trying to create something else would create quite a financial strain.” 

It means that more private schools will be subject to a state oversight system that families like the Kempthornes say is already ineffective. 

Zach’s brother Nathan Kempthorne and Nathan’s wife Esther lived until 2020 in Milbridge, a small town in Washington County. Esther, who is a naturalized citizen born in Mexico, taught Spanish at Washington Academy, so the Kempthornes opted to send their daughters there. 

Esther and her daughters all reported pervasive racist harassment from students, and documented similar experiences by other people of color in the school community, including international students, whom schools like this often seek to attract to supplement the tuition money they get from the state for most students. 

The Kempthornes’ younger daughter Natalia, 18, graduated from Washington Academy two years early and now attends New York University. She called for changes at the school in a 2020 petition that garnered hundreds of signatures, and said in an email that White classmates would “jokingly” threaten to try to have her deported or would compare her to Hispanic cartoon characters. She also saw frequent harassment against Black, Indigenous and LGBT students. 

“Racism was always a part of my high school experience,” Natalia said. “My Mexican heritage was always used as the butt of the joke.”

Esther has said she found a noose in her classroom and dealt with racist comments by students after the 2016 presidential election. She also noted in an email that Christianity was a major part of daily life at the school, despite its nonsectarian designation to receive state funds.

“The school was very supportive of clubs like Teens4Christ, but fought the establishment of the Gay Straight Trans Alliance and the Civil Rights Team,” Esther said. “They always had someone lead a Christian prayer at major events such as graduation. To this day their website does not list the Civil Rights Team as one of the clubs available to students.” 

Though the club is not listed on the school’s website, headmaster Judson McBrine said in an email that it has been established, and the school maintains what is now named the LGBTQ+ Club. Academy trustees also underwent an equity audit and wrote a “Roadmap to an Equitable and Inclusive School,” with goals such as more diverse hiring and equity education. 

“I am proud of the work we have done and the steps taken to make the school a more welcoming, inclusive environment for all students and staff,” McBrine said. “The work we have done is a start and it will be ongoing as we strive to ensure that Washington Academy is a school where everyone feels they belong.” 

He declined to answer specific questions related to allegations made by the Kempthornes. But the family said that overall they felt dismissed or ignored by school leadership, including trustees tasked with working on diversity issues — and said the response from state officials was no better. 

“The worst part is for parents or for children, you’re stuck in a situation where you really have nowhere to go when there’s an issue,” Nathan Kempthorne said. “These are taxpayer-funded schools that the state decided to leave completely outside the realm of oversight.” 

Passing the buck

The Attorney General’s office said it has limited authority to investigate allegations at private schools — that they can sometimes step in on systemic problems, but individual incidents related to protected classes are the purview of the state Human Rights Commission. 

The Kempthornes decided against using that venue for their case, since Nathan said they felt pressured to take a settlement and sign a non-disparagement agreement as part of the process.

Bailey of the MSMA said state investigations at private schools are rare. The state does not conduct regular audits or inspections as part of the annual process where schools request approval to receive public funding. Instead, schools make written assertions that they follow laws regarding, for example, teaching Black history, and the state generally takes them at their word. 

“The assumption is that things are going to be positive, status quo, and, you know, things are as they’re supposed to be,” said Bailey. “If there’s something that comes up that needs to be investigated or examined, then it becomes appropriate (to do so) there much as it would within the public school.” 

This style of oversight seems to have influenced the Supreme Court’s ruling. At December’s oral argument and in the majority opinion, justices suggested that the only standard the state seemed to actually care about was whether funded schools were nonsectarian, which they said cemented their view that the state was discriminating. 

“Indeed, Maine concedes that the Department barely engages in any such scrutiny when enforcing the ‘nonsectarian’ requirement … asserting that there will be no need to probe private schools’ uses of tuition assistance funds because ‘schools self-identify as nonsectarian’ under the program and the need for any further questioning is ‘extremely rare,’ ” Roberts wrote. 

Potential conflict with new requirements

The Kempthornes sought to change this lax oversight by pushing for a bill called LD1672, which passed the legislature and became law without Gov. Janet Mills’ signature last year. Starting this fall, it will require private schools where more than 60% of students are funded by the state to follow public school curriculum, health and safety requirements — including anti-bullying laws. 

This applies to all of the “Big 11” town academies, most of which get more than 95% of their student funding from the state. Some of these and other private schools already must follow some of these public school standards and have argued the law is redundant. 

Even before the Supreme Court ruling, with LD 1672 ready to be implemented, private schools like Washington Academy continued to push back on it as an infringement on their long history of independence — and state officials seemed inclined to accommodate them. 

“They have immense amounts of local influence. They have immense amounts of political influence. And that was visible to us, very visible to us, as we attempted to fight for LD 1672,” Nathan Kempthorne said. 

In another email he obtained, state education commissioner Pender Makin suggested her office might want to only require private schools to “confirm” compliance with certain new rules, “rather than provide evidence.” 

 “I recognize that we have not requested anything that isn’t in statute, but also think we might examine the other perspective,” Makin wrote. “I wonder if it’s possible to transition more gently?”

The bill’s sponsor, Rep. Rebecca Millett (D-Cape Elizabeth), said in an email that she was surprised by the pushback to the law, which led to amendments that the Kempthornes argue weakened its impact. Millett said she will meet with Department of Education officials soon to check on the law’s implementation. 

The effect of the Supreme Court’s ruling on this law remains to be seen. Dan Walker, an attorney who represents the Maine Association of Independent Schools, said he did not expect the decision to change the tuitioning model on its own — nor did he expect MAIS members would seek to add more religion to their curricula or programming. 

Bailey, with the MSMA, said he could envision potential First Amendment conflicts between the religious schools that will take advantage of the Court ruling and the requirements of LD 1672. 

The state Department of Education did not respond to questions by deadline about how the law is being implemented for the coming school year. And on the Carson v. Makin decision, a spokesman said only that they were reviewing it and “will implement the state’s tuition program in accordance with the ruling.”