Amicus Curiae Brief — Kendra Espinoza, et al., Petitioners v. Montana Department of Revenue, et al.

No. 18-1195

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In The

Supreme Court of the United States

-----------------------------------------------------------------ESPINOZA, ET AL.,

Petitioners,

v.

MONTANA DEPARTMENT OF REVENUE, ET AL.,

Respondents.

-----------------------------------------------------------------On Writ Of Certiorari To The

Supreme Court Of Montana

-----------------------------------------------------------------BRIEF OF THE STATE OF MAINE AS AMICUS

CURIAE IN SUPPORT OF RESPONDENTS

-----------------------------------------------------------------AARON M. FREY

Attorney General

Of Counsel:

SUSAN P. HERMAN

Deputy Attorney General

SARAH A. FORSTER

Counsel of Record

CHRISTOPHER C. TAUB

Assistant Attorneys General

OFFICE OF THE

ATTORNEY GENERAL

Six State House Station

Augusta, ME 04333-0006

(207) 626-8800

sarah.forster@maine.gov

Attorneys for State of Maine

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................

ii

INTEREST OF THE STATE OF MAINE AS

AMICUS CURIAE ............................................

1

SUMMARY OF ARGUMENT ..............................

2

ARGUMENT ........................................................

4

I.

Unlike a typical “voucher” or “school choice”

program, the benefit made available by

Maine’s tuition program is a free public education for students who reside in a school

administrative unit that neither operates a

public school nor contracts for schooling

privileges ....................................................

4

II.

Unlike a sweeping “Blaine Amendment” or

“no-aid” clause, Maine’s tuition program is

the result of carefully considered legislative

judgment as to what constitutes a public education........................................................ 10

III.

The Court of Appeals for the First Circuit

has previously rejected claims that Maine’s

tuition program violates the Free Exercise

Clause and nothing in this Court’s Trinity

Lutheran decision casts doubt on the First

Circuit’s decision ........................................ 15

CONCLUSION..................................................... 19

ii

TABLE OF AUTHORITIES

Page

CASES

Anderson v. Town of Durham, 895 A.2d 944 (Me.

2006) ........................................................................15

Bagley v. Raymond Sch. Dep’t, 728 A.2d 127 (Me.

1999) .................................................................. 10, 15

Bethel Sch. Dist. No. 403 v. Frazier, 478 U.S. 675

(1986) .........................................................................8

Brown v. Board of Educ., 347 U.S. 483 (1954) .............7

Edwards v. Aguillard, 482 U.S. 578 (1987) ..................8

Eulitt v. Maine Dep’t of Educ., 386 F.3d 344 (1st

Cir. 2004) .................................................................15

Hallissey v. Sch. Admin. Dist., No. 77, 755 A.2d

1068 (Me. 2000) ..................................................... 3, 7

Locke v. Davey, 540 U.S. 712 (2004) ................... passim

San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1 (1973) ..............................................................8

Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999)..... 10, 15

Tilton v. Richardson, 403 U.S. 672 (1971) ..................13

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017)......................... passim

Walz v. Tax Comm’r of City of New York, 397 U.S.

664 (1970) ................................................................13

West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624 (1943) ..........................................................8

iii

TABLE OF AUTHORITIES – Continued

Page

Wisconsin v. Yoder, 406 U.S. 205 (1972) .......................8

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .... passim

CONSTITUTIONS

Me. Const. art. VIII, pt. 1, § 1 ................................... 1, 5

STATUTES

20-A Me. Rev. Stat. Ann. § 2(1) .....................................5

20-A Me. Rev. Stat. Ann. § 1001(8) ...............................5

20-A Me. Rev. Stat. Ann. § 2701 ............................... 1, 6

20-A Me. Rev. Stat. Ann. § 2702 ............................... 1, 6

20-A Me. Rev. Stat. Ann. § 2951 ...................................6

20-A Me. Rev. Stat. Ann. § 2951(1) ...............................6

20-A Me. Rev. Stat. Ann. § 2951(2) ..................... passim

20-A Me. Rev. Stat. Ann. § 2951(5) ...............................6

20-A Me. Rev. Stat. Ann. § 5204(4) ........................... 1, 6

Mont. Code Ann. § 15-30-3101 .....................................9

1

INTEREST OF THE STATE OF

MAINE AS AMICUS CURIAE

Like the State of Montana, the State of Maine has

a paramount interest in the provision of a free public

education to all of its children. The Constitution of

Maine has a provision requiring “the several towns to

make suitable provision, at their own expense, for the

support and maintenance of public schools.” Me. Const.

art. VIII, pt. 1, § 1. It has never had a so-called “Blaine

Amendment” or a “no-aid” clause.

Because it is a lightly populated, predominantly

rural state, many school administrative units (“SAUs”)

in Maine do not operate public secondary schools. In

those cases, Maine law provides two options: an SAU

may contract with another public or approved private

school for schooling privileges for some or all of its resident students in those grades, 20-A Me. Rev. Stat.

Ann. §§ 2701, 2702, or an SAU “that neither maintains

a secondary school nor contracts for secondary school

privileges . . . shall pay the tuition, . . . , at the public

school or the approved private school of the parent’s

choice at which the student is accepted.” 20-A Me.

Rev. Stat. Ann. § 5204(4). In order to be an approved

private school, a school must be “a nonsectarian

school in accordance with the First Amendment of the

United States Constitution.” 20-A Me. Rev. Stat. Ann.

§ 2951(2) (“Section 2951(2)”). It is this decision to exclude sectarian schools from receiving public funds

that links the States of Maine and Montana.

2

Maine’s interest in this case is far from theoretical: the outcome of this case has the potential to impact

pending litigation challenging the constitutionality of

Section 2951(2) in the First Circuit Court of Appeals,

Carson v. Makin, No. 19-1746 (appeal filed August 2,

2019). This litigation represents the third time in

the last 20 years that a group of Maine parents has

sued to invalidate Section 2951(2) and fundamentally

change Maine’s public education system. Maine submits this brief to ensure that, in analyzing the issue

presented in Espinoza, the Court is aware of the different approaches that the States take with respect to the

use of private schools in ensuring the provision of a

free public education. Maine believes that Montana

should prevail in Espinoza, but in the event that it does

not, Maine urges the Court to limit its ruling in a manner that allows for states like Maine to continue to use

secular, but not sectarian, schools as part of the provision of a free public education to its children.

------------------------------------------------------------------

SUMMARY OF ARGUMENT

I. Maine has taken a unique approach to the use

of private schools as part of its system of public education. Unlike Montana’s tax credit program, or the typical “voucher” or “school choice” program, see Zelman v.

Simmons-Harris, 536 U.S. 639 (2002), Maine’s tuition

program serves not as an opportunity for families to

choose an alternative to their local public school, but

as a method of delivering a free public education to students who “live within school administrative units that

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simply do not have the resources to operate a public

school system, and whose children would otherwise not

be given an opportunity to receive a free public education.” Hallissey v. Sch. Admin. Dist. No. 77, 755 A.2d

1068, 1073 (Me. 2000). Because Maine’s tuition program uses private schools as de facto public schools,

and not as alternatives to public schools, Maine has a

compelling interest in ensuring that the education provided to the students in the tuition program is comparable to the non-sectarian education which they would

receive if they attended a public school.

II. Unlike a sweeping “Blaine Amendment” or

“no-aid” clause, the tuition program is the result of specific legislative consideration of whether sectarian education belongs as part of Maine’s public education

system. In undertaking that consideration, there is no

evidence of animus or hostility toward religion; instead, the Maine Legislature sought to reject intolerance and discrimination in schools serving as de facto

public schools. It is clear from the undisputed facts in

Carson v. Makin that the education provided by the

sectarian schools, as well as the schools’ policies and

practices, are inconsistent with a public education.

III. Section 2951(2) has been challenged twice

before and in each case, both Maine’s Supreme Judicial

Court and the Court of Appeals for the First Circuit

found the statute to be constitutional. Nothing in this

Court’s limited holding in Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) casts

doubt on this Court’s prior decision in Locke v. Davey,

540 U.S. 712 (2004) which held that with respect to

4

funding religious education and training, the “play in

the joints” between the Religion Clauses allows States

to decline funding for sectarian education while they

provide funding for secular education.

------------------------------------------------------------------

ARGUMENT

I.

Unlike a typical “voucher” or “school choice”

program, the benefit made available by

Maine’s tuition program is a free public education for students who reside in a school

administrative unit that neither operates a

public school nor contracts for schooling

privileges.

In his Trinity Lutheran concurrence, Justice Breyer

observed that “[p]ublic benefits come in many shapes

and sizes.” 137 S. Ct. 2012 at 2027. In order to properly

analyze the constitutionality of Maine’s tuition program, it is essential to start by identifying the public

benefit bestowed by the program: a free public education. It is equally important to state what Maine’s

tuition program is not: a “voucher” or “school choice”

program where parents are given the opportunity to

select a school other than the local public school that

their child would otherwise attend. It is this distinction

between Maine’s use of secular private schools as

de facto public schools and the opportunity to use

public funds to choose an alternative to an otherwise

available public school that distinguishes Maine’s

tuition program from the voucher program in Zelman v. Simmons-Harris, 536 U.S. 639 (2002) and the

5

scholarship program in Espinoza and justifies Maine’s

decision to exclude sectarian schools.

The Constitution of Maine states:

A general diffusion of the advantages of education being essential to the rights and liberties of the people; to promote this important

object, the Legislature are authorized, and it

shall be their duty to require, the several

towns to make suitable provision, at their own

expense, for the support and maintenance of

public schools; . . . .

Me. Const. art. VIII, pt. 1, § 1. Pursuant to 20-A

Me. Rev. Stat. Ann. § 2(1), “[i]t is the intent of the Legislature that every person within the age limitations

prescribed by state statues shall be provided an opportunity to receive the benefits of a free public education.”

In Maine, there are currently 260 local SAUs, defined by statute as the state-approved unit of school

administration, serving nearly 180,000 students in

grades K-12 at public expense. JSF, ¶¶ 3, 4, 20.1 Each

SAU “shall either operate programs in kindergarten

and grades one to 12 or otherwise provide for students

to participate in those grades as authorized elsewhere

[by statute].” 20-A Me. Rev. Stat. Ann. § 1001(8). Of the

260 SAUs, 143 do not operate a secondary school. JSF,

1

The Joint Stipulated Facts (“JSF, ¶ __”) cited herein was

filed in Carson v. Makin, 1:18-cv-327-DBH and is available

through the District of Maine’s PACER service (https://ecf.med.

uscourts.gov) at Document No. 25.

6

¶ 6. Maine law provides two alternatives for an SAU to

provide a public education to its resident students

when it does not operate a public school for one or more

grades. First, an SAU may contract with another public or approved private school for schooling privileges

for some or all of its resident students in those grades.

20-A Me. Rev. Stat. Ann. §§ 2701, 2702. Second, an SAU

“that neither maintains a secondary school nor contracts for secondary school privileges pursuant to

chapter 115 shall pay the tuition, in accordance with

chapter 219, at the public school or the approved private school of the parent’s choice at which the student

is accepted.” 20-A Me. Rev. Stat. Ann. § 5204(4).

Section 2951 contains the requirements for a private school to be approved to receive public funds for

tuition purposes. JSF, ¶ 13. Those schools must, inter

alia, meet the requirements for basic school approval

contained in the statute and agree to comply with reporting and auditing requirements. 20-A Me. Rev. Stat.

Ann. § 2951(1), (5). In addition, and at the heart of the

Carson v. Makin litigation, they must be “a nonsectarian school in accordance with the First Amendment

of the United States Constitution.” 20-A Me. Rev. Stat.

Ann. § 2951(2).

There is no dispute that students who receive a

public education from a public secondary school receive a non-sectarian education. So, if students reside

in an SAU that operates a public high school or that

has a contract for secondary school privileges, the students are not entitled to a sectarian education at public expense. With respect to students who live in an

7

SAU that neither operates a public high school nor contracts for schooling privileges, Maine’s Supreme Judicial Court has explained:

The Legislature endeavors to ensure that

each child will be entitled to an opportunity to

receive a free public education, not to guarantee children a free education at any public or

private school of their choice. Within the statutory scheme, section 5204(4)’s function is

limited to authorizing the provision of tuition

subsidies to the parents of children who live

within school administrative units that

simply do not have the resources to operate a

public school system, and whose children

would otherwise not be given an opportunity

to receive a free public education.

Hallissey, 755 A.2d 1068 at 1073 (emphasis in original). Thus, the tuition program is simply a vehicle for

students in this third category to receive a free public

education that is consistent with, and no broader than,

the benefit provided by the first two options. As there

is no dispute that students in the first two categories

cannot receive sectarian instruction at public expense,

Section 2951(2) applies that same rule to the third.

No case has ever held, or even suggested, that a

State’s decision to define a public education to mean a

secular education raises any constitutional concerns.

This is unsurprising given the considerable state interest in public education as well as the primary role

of the state in this area. Brown v. Board of Educ., 347

U.S. 483, 493 (1954) (describing public education as

8

“perhaps the most important function of state and local governments”); Wisconsin v. Yoder, 406 U.S. 205,

213 (1972) (“providing public schools ranks at the very

apex of the function of a State”); San Antonio Indep.

Sch. Dist. v. Rodriguez, 411 U.S. 1, 39 (1973) (with respect to public education, a state’s efforts “shall be

scrutinized under judicial principles sensitive to the

nature of the State’s efforts and to the rights reserved

to the States under the Constitution”).

A free public education has long been equated

with a secular instruction. See West Virginia State Bd.

of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“Free

public education, if faithful to the ideal of secular instruction . . . will not be partisan or enemy of any . . .

creed. . . .”); Edwards v. Aguillard, 482 U.S. 578, 584

(1987) (striking down religiously motivated instruction

in public secondary schools and stating that “[t]he public school is at once the symbol of our democracy and

the most pervasive means for promoting our common

destiny. In no activity of the State is it more vital to

keep out divisive forces than in its schools. . . .” (citation omitted)); see also Bethel Sch. Dist. No. 403 v.

Frazier, 478 U.S. 675, 681 (1986) (noting that the objectives of public education are to “inculcate the habits

and manners of civility” which “must, of course, include

tolerance of divergent . . . religious views. . . .”).

In contrast, “voucher” programs such as the one

reviewed by this Court in Zelman and the scholarship

program before it now in Espinoza involve a different

type of program: a program that provides not the basic

access to a free public education, but the option to use

9

public funds to reject or avoid the free public education

offered by a local public school. There is no question

that the purpose of the Montana scholarship program

“is to provide parental and student choice in education.” Mont. Code Ann. § 15-30-3101. With respect to

the Pilot Project Scholarship Program that the Court

reviewed in Zelman, Chief Justice Rehnquist began his

opinion by describing in the starkest terms the demonstrable failure of Cleveland’s public school system – a

school district described by the state auditor as being

in a “crisis that is perhaps unprecedented in the history of American education” – as well as the inability

of the predominantly low-income and minority families to send their children to any school other than

Cleveland’s public schools. Zelman, 536 U.S. at 644.

Against that backdrop, the tuition aid program was

“part of a broader undertaking by the State to enhance

the education options of Cleveland’s schoolchildren in

response to the [state] takeover.” Id. at 647.

In sum, unlike Montana or Ohio, Maine’s tuition

program uses private schools as de facto public schools

and not as alternatives to public schools. As such, as

described below, Maine has a compelling interest in ensuring that the education provided to the students in

the tuition program is comparable to that which they

would receive if they attended a public school.

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II.

Unlike a sweeping “Blaine Amendment” or

“no-aid” clause, Maine’s tuition program is

the result of carefully considered legislative

judgment as to what constitutes a public education.

Maine’s unique approach for providing a free public education reflects the carefully considered judgment of the Legislature as to what constitutes a public

education. Unlike an all-inclusive “Blaine Amendment”

or “no-aid” clause, the tuition program is the result of

specific legislative consideration of whether sectarian

education belongs as part of Maine’s public education

system, as opposed to as an alternative available to

parents at their own expense.

Prior to 1980, some sectarian schools received public funds for tuition purposes. JSF, ¶ 18. In January of

1980, in response to a request from a legislator, the

Maine Attorney General issued an opinion that thoroughly reviewed the existing First Amendment jurisprudence and concluded that the public funding of

religious schools would violate the Establishment

Clause. JSF, ¶ 187. Subsequently, the Legislature enacted the provision currently codified at Section

2951(2). JSF, ¶ 188. More than 15 years later, two separate groups of parents filed lawsuits challenging the

constitutionality of Section 2951(2). Both the Maine

Suupreme Judicial Court and the Court of Appeals for

the First Circuit agreed with the reasoning of the Attorney General and held that the Establishment Clause

prevented Maine from allowing payments to sectarian

schools. Bagley v. Raymond Sch. Dep’t, 728 A.2d 127

11

(Me. 1999); Strout v. Albanese, 178 F.3d 57 (1st Cir.

1999).

That was not the end of the Legislature’s consideration of the use of public tuition dollars for sectarian

education. In 2002, this Court decided Zelman v. Simmons-Harris, 536 U.S. 639 (2002). Zelman held, for the

first time, that it was possible for a state to develop a

“voucher” program that would allow parents to use

public money to pay for sectarian schools without violating the Establishment Clause. Id. at 662-63. Presented with the opportunity to consider public tuition

payments for sectarian education anew, a bill was introduced in 2003 to repeal Section 2951(2). JSF, ¶ 189.

The bill did not become law. JSF, ¶ 202. Copies of the

official legislative record provide insight into the specific rationales of the Legislature in deciding to retain

Section 2951(2), each of which explain the policy basis

for the decision:

•

It is the sovereign prerogative of the people of

the State of Maine to determine how public

funds can and should be used in supporting

public education for the children of this state.

JSF, ¶ 193.

•

Maine has a high performing system of public

education, and there is no need to add to

or change it. JSF, ¶ 192; Document No. 24-2,

PageID 192.

•

Bringing all of our children together, no matter what their religious affiliation or background, promotes democracy, tolerance, and

what is best in all of us. JSF, ¶ 201.

12

•

A publicly funded education system works

best when the education is one of diversity

and assimilation, religiously neutral, and not

a “separate and sectarian” one. JSF, ¶¶ 196,

201.

•

The government has an important oversight

role with respect to what is taught in schools

but cannot, and should not, oversee the religious components of any school. Because of

that, public funds should not pay for an education over which the state cannot have oversight. JSF, ¶¶ 194, 201.

•

Religious schools can, and reserve the right to,

discriminate in favor of those of their own religion and the state should not fund discrimination. JSF, ¶¶ 193-94.

Consistent with counsel for Petitioner’s brief in

the instant case, counsel for the parents’ First Circuit

brief in Carson v. Makin is permeated with assertions

that Maine’s tuition program is hostile to religion

and the product of religious animus. The portions of

the legislative record they cite to, though, belie these

assertions. For example, not wanting to “fund discrimination” or the teaching of “intolerant” views does not

demonstrate a hostility to religion. Rather, it demonstrates a hostility to discrimination and intolerance. As

discussed above, the purpose of the tuition program is

to provide a free public education, i.e., a secular education. It is not evidence of animus, then, to not want to

13

include in the program schools whose overwhelming

mission is religious.

As the stipulated facts in Carson v. Makin make

clear, the education at the sectarian schools for which

the parents seek public funds is nothing like the education at public schools or private secular schools. As

a representative of Temple Academy (“TA”) candidly

testified, there is a “big difference” between private

schools and private Christian schools. JSF, ¶ 182. And

as previously described by this Court, “ ‘[t]he affirmative if not dominant policy’ of the instruction in precollege church schools is ‘to assure future adherents to

a particular faith by having control of their total education at an early age.’ ” Tilton v. Richardson, 403 U.S.

672, 685-86 (1971) (quoting Walz v. Tax Comm’r of City

of New York, 397 U.S. 664, 671 (1970)).

Bangor Christian Schools (“BCS”) is a ministry of

Crosspoint Church with the objective of “training

young men and women to serve the Lord.” JSF, ¶ 70.

The School will only admit students who are willing to

support BCS’ philosophy of Christian education and

conduct. JSF, ¶ 88. BCS believes that a student who is

homosexual or identifies as a gender other than that

on his or her birth certificate could not sign the agreement governing codes of conduct that BCS requires as

a condition of admission. JSF, ¶ 89. A student who has

been admitted, but subsequently presents him or herself as homosexual, or as a gender other than that on

his or her birth certificate, would not be allowed to continue attending BCS. JSF, ¶¶ 90-92.

14

BCS does not believe that there is any way to

separate the religious instruction from the academic

instruction. JSF, ¶ 101. Religious instruction is “completely intertwined.” Id. Among the objectives of BCS

are teaching students to be good Christians, promoting

Christian values, and developing Christian leadership.

JSF, ¶ 95. BCS teaches students they should spread

Christianity in the world. JSF, ¶ 104. This includes

teaching children that the Bible is the word of God,

that it is infallible, and that it should be obeyed in

every aspect of life. JSF, ¶ 169.

TA is an “integral ministry” and essentially an “extension” of Centerpoint Community Church. JSF,

¶ 134. The Academy will not admit homosexual students or students who identify with a gender that is

different than what is listed on his or her birth certificate. JSF, ¶¶ 157-58. It will not admit a child who lives

in a two-father or two-mother family. JSF, ¶ 159.

TA provides a “biblically-integrated education”

where teachers “are expected to integrate Biblical

principles with their teaching in every subject taught.”

JSF, ¶¶ 164, 168. TA teaches children that the Bible is

the Word of God, that it is infallible, and that it should

be obeyed in every aspect of life. JSF, ¶ 170. TA seeks

to “mold” students to be “Christlike.” JSF, ¶ 173. TA

teaches students that they should attempt to spread

the word of Christianity. JSF, ¶ 171.

In sum, the stipulated facts in Carson show that

the sectarian schools to which the parents seek to send

their children at public expense explicitly discriminate

15

against homosexuals, individuals who are transgender,

and non-Christians with respect to both who they admit and retain as students, and who they hire as teachers and staff. They provide instruction aimed at

inculcating their students in the Christian faith, and

engage in and encourage students to engage in proselytizing. To the extent that they provide education in

many of the same subjects that are included in the curricula of non-sectarian schools and public schools, the

schools themselves candidly acknowledge that there is

no way to separate the religious instruction from the

“biblically-integrated” academic instruction.

III. The Court of Appeals for the First Circuit

has previously rejected claims that Maine’s

tuition program violates the Free Exercise

Clause and nothing in this Court’s Trinity

Lutheran decision casts doubt on the First

Circuit’s decision.

Maine’s tuition program has been repeatedly challenged in both federal and state court over the past 20

years, with both Maine’s Supreme Judicial Court and

the Court of Appeals for the First Circuit squarely rejecting claims from parents that the tuition program

violates the Free Exercise Clause, the Establishment

Clause, or the Equal Protection Clause. Eulitt v. Maine

Dep’t of Educ., 386 F.3d 344 (1st Cir. 2004); Strout v.

Albanese, 178 F.3d 57 (1st Cir. 1999); Anderson v. Town

of Durham, 895 A.2d 944 (Me. 2006); Bagley v. Raymond Sch. Dep’t, 728 A.2d 127 (Me. 1999). The First

Circuit’s 2004 Eulitt decision carefully considered the

16

impact of both Zelman v. Simmons-Harris, 536 U.S.

639 (2002) and Locke v. Davey, 540 U.S. 712 (2004) and

concluded that Maine’s decision not to fund religious

education fell within the “play in the joints” affirmed

by Locke. Nothing in this Court’s recent decision in

Trinity Lutheran Church of Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017) suggests that either Locke or the

central principle behind the “play in the joints” – that

there is room between what the Establishment Clause

allows and what the Free Exercise Clause requires – is

no longer the law. In contrast, Petitioners’ argument

would snap the “joints” of the Religion Clauses shut; a

position sharply in contrast with the entirety of this

Court’s Religion Clauses jurisprudence.

Read together, Zelman and Locke, both written by

Chief Justice Rehnquist, emphasize the deference due

to State decision making regarding education, and particularly the funding of religious education. Zelman explains what States are permitted to do with respect to

funding religious education; Locke explains what

States cannot be forced to do. While Ohio was able to

create a “voucher” program that allowed parents to access public funding for sectarian education without

running afoul of the Establishment Clause, Washington was able to exclude state funding for religious vocational education without running afoul of the Free

Exercise Clause. Maine has chosen a similar route to

that taken by Washington, and Maine’s tuition program survives constitutional scrutiny for the reasons

outlined in Locke. Nothing in the Trinity Lutheran decision disturbs Locke, and nothing in Trinity Lutheran

17

casts the constitutionality of Maine’s tuition program

into doubt.

Unlike Trinity Lutheran, which is explicitly limited to a single set of facts and specifically excludes “religious uses of funding,” there is no basis for concluding

that Locke is applicable to only one specific educational

funding decision. Locke affirms the legitimacy of establishment concerns when it comes to the funding of religious education and training. 540 U.S. at 721-23.

Maine’s use of private schools as de facto public schools

is a prime example of a situation where religious and

secular private schools are not “fungible.”

Unlike Trinity Lutheran, Maine’s tuition program

does not exclude “fully qualified recipients” from an

“otherwise available benefit program.” While the parents are eligible to participate in the tuition program

because they live in towns that neither operate a secondary school nor contract for school privileges, they are

seeking a different public benefit than the one Maine

is offering: a publicly funded sectarian education. Unlike Trinity Lutheran Church, which wanted to obtain

public funds for the same type of safety upgrade for

its playground surface as the non-church applicants,

these parents are looking for public funds for a completely different purpose: a sectarian education as opposed to a public education.

Unlike Trinity Lutheran, the Maine parents are

not being asked to choose between their religious beliefs and receiving a government benefit. Whether the

parents are religious or whether their desire to choose

18

a sectarian school for their children is motivated by

their sincere religious beliefs is wholly immaterial

with respect to the tuition program. No matter what

the reason, public funding through the tuition program

for sectarian schools is not available. While the parents

testified that they would like to choose a sectarian

school because it provides a high quality education and

is consistent with their religious beliefs, a nonreligious parent who wishes to send her son to a nearby

Catholic high school because she believes it has strong

disciplinary policies and her son wants to play on the

hockey team would also be prevented from doing so.

Unlike Trinity Lutheran Church, which was disqualified from the Scrap Tire Program simply because it

was a church, Maine’s tuition program hinges not on

who a parent is, but on what he or she wishes to purchase with public funds.

In sum, Trinity Lutheran and Locke address different scenarios with correspondingly different levels of

judicial scrutiny. On one hand is a situation where the

religious are singled out because of their religious

status and denied access to a generally available

public benefit program that does not implicate antiestablishment interests (e.g., the categorical exclusion

of churches because they are churches from a program

that provides scrap tire for playground resurfacing as

in Trinity Lutheran). On the other is a limit on all persons, religious or not, from using public money to fund

an “essentially religious endeavor” that triggers traditional state antiestablishment interests (e.g., a program that prohibits everyone, religious or not, from

19

using public funds to pay for a degree in devotional

theology as in Locke). In at least two ways, Maine’s tuition program is a better example of this principle than

Locke itself: parents in Maine seeking to obtain a sectarian education for their children are less likely to be

religiously motivated than individuals pursuing degrees in devotional theology, and, as discussed above,

Maine’s antiestablishment interest in its publicly

funded K-12 education system is far greater than a

State’s interest in funding of post-secondary education.

------------------------------------------------------------------

CONCLUSION

For the reasons stated, Amicus Curiae State of

Maine respectfully urges the Court to affirm the judgment of the Montana Supreme Court.

Respectfully submitted,

AARON M. FREY

Attorney General

November 14, 2019

SUSAN P. HERMAN

Deputy Attorney General

SARAH A. FORSTER

Counsel of Record

CHRISTOPHER C. TAUB

Assistant Attorneys General

OFFICE OF THE ATTORNEY GENERAL

Six State House Station

Augusta, ME 04333-0006

(207) 626-8800

sarah.forster@maine.gov

Attorneys for State of Maine