Public Funding of Private Religious Schools: Constitutional or Unconstitutional?

The United States Supreme Court recently sent a message to state legislatures that, in appropriate circumstances, states can enact legislation which permits the payment of public funds, based upon independent individual choice, for private religious school tuition. On November 27, 2006, the United States Supreme Court decided not to hear an appeal of a 2006 decision of the Supreme Judicial Court of Maine in Anderson et al. v. Town of Durham, effectively leaving the question of whether public funds can be used for the payment of private sectarian school tuition to individual state legislatures.  The disputed Maine statute authorizes the use of public funds to pay tuition only at approved non-sectarian private schools on behalf of students who live in districts that do not operate a public high school. Implicitly, the use of public funds to pay tuition to sectarian or religious based schools is prohibited.  In Anderson, the Maine Court was called upon to decide, for the second time, whether that statute, was constitutional.  The Court had previously upheld the state’s statute in Bagley v. Raymond School Department, a 1999 decision in which similarly situated plaintiffs had challenged the statute on constitutional grounds, including the free exercise of religion.  As in Bagley, the Maine Supreme Court decided in Anderson that the statute was constitutional.

The plaintiffs in Anderson argued that subsequent to the decision in Bagley, a 2002 decision of the U.S. Supreme Court in Zellman v. Simmons-Harris, which upheld the constitutionality of an Ohio tuition voucher program, had changed the law and compelled a determination that the prohibition on payment for tuition to attend sectarian schools now violated the United States Constitution.   However, the Maine Court in Anderson distinguished Zellman on the basis that the Supreme Court in Zellman did not focus on whether a religious institution benefited from receipt of public funds, but rather, whether the funds were channeled indirectly to that institution as a result of private choice.  The Zellman court reasoned that the government aid went directly to numerous individual recipients.  It was the individual recipients, not the government, who then made the decision to use the government aid for private religious school tuition. 

While the Anderson court acknowledged such expenditures were permissible under Zellman, it declined to draw the inference that the Maine statute was therefore unconstitutional and should be stricken.  Rather, the Maine Court equated the Maine statute, which precluded the use of public funds for sectarian school tuition, to the 2004 United States Supreme Court decision in Locke v. Davey in which the Court held that a Washington state college scholarship program that prohibited the use of scholarship funds for pursuit of a devotional theology degree was constitutional.  In Locke, the Supreme Court indicated that Zellman stood for the proposition that under the establishment clause, “the link between government funds and religious training is broken by the independent and private choice of recipients.”  The Supreme Court noted that if Washington State wished, it could, consistent with the establishment clause, permit scholarship recipients to pursue a degree in devotional theology.  The issue in Locke was whether Washington could deny such funding without violating the free exercise clause.  The Supreme Court determined that it could.

Similarly, the Maine Court in Anderson concluded that after Zellman, the state may be permitted to pass a statute authorizing some form of tuition payments to religious schools, but is not compelled to do so under Locke.  Therefore, the Maine statute neither improperly infringed on the free exercise of religion nor violated the establishment clause.  By declining to hear the appeal, the Supreme Court has effectively concurred in the Maine Court’s analysis.   

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