VOUCHER VOLLEY: Maine Supreme Court Rules against Private School Vouchers, but Bush Plan Passes in Florida

By Benen, Steve | Church & State, June 1999 | Go to article overview

VOUCHER VOLLEY: Maine Supreme Court Rules against Private School Vouchers, but Bush Plan Passes in Florida


Benen, Steve, Church & State


Maine Supreme Court Rules Against Private School Vouchers, But Bush Plan Passes In Florida

For church-state separationists, the last week in April amounted to one step forward and one step back.

Within a seven-day span, opponents of school vouchers enjoyed one of their biggest legal victories ever when the Maine Supreme Court ruled that voucher funding of religious schools is unconstitutional, and then suffered one of their biggest legislative defeats when the Florida legislature passed the first ever statewide voucher plan.

These developments, coupled with increased activity in other states, have drawn attention to the major voucher push under way nationwide.

While private school voucher controversies are fought in state legislatures every year, including this year, the situation in Maine was significantly different.

Generally, in voucher battles, state officials attempt to set up a program where taxpayers finance tuition at religious and other private schools. If the plan becomes law, education and civil liberties groups, such as Americans United for Separation of Church and State, challenge the plan in court. But in Maine, the case was the opposite.

In 1981 the Maine legislature passed a law that permitted towns that do not have public high schools to pay tuition to any public or private school a parent chose. However, to avoid constitutional difficulties and on the advice of the state attorney general, the legislature excluded religious schools from the program.

Cynthia and Robert Bagley, parents in Raymond, Maine, claimed the exclusion violated their free exercise of religion and was tantamount to discrimination. The Bagleys, along with four other families in Raymond, enrolled their sons in Cheverus High School, a Catholic school operated by the Society of Jesus in Portland, and asked the Raymond School District to pay for their sons' tuition costs. When the school district declined the request, citing the law, a lawsuit was filed.

Last year, a state district court dismissed the case, ruling that the school district had properly applied state law.

The Maine Supreme Court, hearing Bagley v. Raymond School Department on appeal, merely had to consider whether exclusion of religious schools from the state's tuition program is permissible. However, to the delight of voucher opponents nationwide, the court did that and much more.

In a sweeping 5-1 decision issued April 23, the justices not only held that the parents' rights had not been infringed but also ruled that publicly funded voucher subsidies for religious schools would violate the U.S. Constitution.

"The purpose of the [First Amendment's] Establishment Clause," wrote Justice Leigh Saufley in the majority opinion, "is reflected in the often repeated words of Thomas Jefferson: to build `a wall of separation between Church and State.' ... Distilled to its essence, the Establishment Clause prohibits the government from supporting or advancing religion and from forcing religion, even in subtle ways, on those who choose not to accept it."

Carefully dissecting the Supreme Court's numerous decisions on tax aid to religious schools, the Maine justices rejected the claim that vouchers subsidize parental choice, not religious schools.

"Although the school is chosen by parents, not the State," the court ruled, "choice alone cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion. None of the Supreme Court's decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge."

The Maine court also noted, "If the religious school exclusion were eliminated, the State would likely pay more than $5,000 per student per year to Cheverus High School, without restriction on the use of those funds. In the entire history of the Supreme Court's struggle to interpret the Establishment Clause, it has never concluded that such a direct, unrestricted financial subsidy to a religious school could escape the strictures of the Establishment Clause.

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VOUCHER VOLLEY: Maine Supreme Court Rules against Private School Vouchers, but Bush Plan Passes in Florida
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