Maine’s “Nonsectarian” Requirement For Tuition Assistance Payments Violates Free Exercise Clause And Student Still Has Standing In Case

CATEGORY: Private Education Matters
CLIENT TYPE: Private Education
DATE: Apr 28, 2023

Maine’s Constitution provides that every school-age child in the state be provided with an opportunity to receive the benefits of a free public education. However, as a rural state with remote geography and low population density, fewer than half of Maine’s school districts operate a public secondary school of their own. To address this problem, Maine enacted a tuition assistance program for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district makes payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments so long as they are “non-sectarian.”

On June 21, 2022, the United States Supreme Court held that Maine’s nonsectarian requirement for tuition assistance violated the Free Exercise Clause of the First Amendment of the Constitution and remanded the case back to the federal Maine trial court for further proceedings.

On September 21, 2022, the Plaintiffs filed a motion for entry of judgment. Makin, the Commissioner of the Maine Department of Education, responded to the Plaintiffs’ motion stating that the Plaintiffs no longer have an interest or standing in the case and it should be dismissed as moot. Makin’s position was that the Plaintiffs originally brought the suit on behalf of four public school students who professed a desire to attend a religious school. In the nearly five years that have elapsed since, however, three of the four children have graduated high school, so those parents no longer have a cognizable interest in the outcome of the litigation. The fourth child, referred to as R.N., transferred in 2019 from a private religious school to a public high school, and then to a private, non-religious high school, where he is now in his junior year. Makin argues that R.N. can no longer claim that “but for” the Maine statute, R.N. would attend a religious school at public expense. R.N.’s parents acknowledge that their son gets to decide where to complete his final year of high school, and there is no evidence that he wants to transfer to a religious school.

Plaintiffs, on the other hand, argue that consistent with the Supreme Court’s ruling, the Court should enter a simple declaratory judgment regarding the unconstitutionality of the nonsectarian requirement and a simple injunction barring its enforcement. Plaintiffs argue that they have standing because they have lost the opportunity to seek religious education.

The Court concluded that the Plaintiffs do have standing, and Chief Justice Roberts was careful to note the status of the children as students when the litigation commenced. Although one of the children had graduated at the time of the Supreme Court’s opinion, Justice Roberts focused equally on this student as the other student remaining in the case. The Court also noted that they are compelled to carry out the mandate from the Supreme Court and to rule that a party does not have standing now would be contrary to the direct orders from the Supreme Court. The Court denied Makin’s motion, and after the parties submit the proposed language for a declaratory judgment and permanent injunction, the Court will grant the Plaintiffs’ Motion for Entry of Judgment, Including Injunctive Relief.

Carson v. Makin (D. Me., Apr. 6, 2023) 2023 WL 2814131.

Note: LCW previously reported on an earlier decision in this case in the June 2022 Private Education Matters. Similar cases have been filed in California, challenging California’s law that only secular private schools can participate in federal funding under the Individuals with Disabilities Education Act which is administrated through the state. The case filed in California cited Carson v. Makin to argue that the state’s program was unconstitutional. LCW will monitor this case for further developments.

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