Amicus Curiae Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

Supreme Court briefOct 29, 2021

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No. 20-1088

IN THE

Supreme Court of the United States

DAVID CARSON, as PARENT AND

NEXT FRIEND OF O.C., ET AL.,

Petitioners,

A. PENDER MAKIN,

Respondent.

On Writ of Certiorari to the United States

Court of Appeals for the First Circuit

BRIEF OF PUBLIC FUNDS PUBLIC SCHOOLS

AS AMICUS CURIAE SUPPORTING

RESPONDENT

DAVID SCIARRA

WENDY LECKER

JESSICA LEVIN

EDUCATION CENTER

60 Park Place, Suite 300

Newark, N.J. 07102

(973) 624-1815

F. ANDREW HESSICK

160 Ridge Road

Chapel Hill, N.C. 27599

(919) 962-4332

OCTOBER 29, 2021

RICHARD A. SIMPSON

Counsel of Record

ELIZABETH JEWELL

WILEY REIN LLP

1776 K Street, N.W.

Washington, D.C. 20006

(202) 719-7314

rsimpson@wiley.law

TABLE OF CONTENTS

TABLE OF CONTENTS ........................................... i

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

INTEREST OF THE AMICUS CURIAE ................ 1

SUMMARY OF ARGUMENT .................................. 2

ARGUMENT ............................................................ 6

II.

MAINE’S TUITION PROGRAM IS

RATIONALLY RELATED TO A

LEGITIMATE STATE INTEREST............... 7

Providing public education is a core

state function subject to rational basis

review. ................................................. 7

Maine’s tuition program is rationally

related to its legitimate state interest

in providing public education. .......... 12

MAINE’S TUITION PROGRAM DOES

NOT UNCONSTITUTIONALLY

DISCRIMINATE AGAINST RELIGION.... 18

In providing public education, Maine

is not obliged to support religious

curricula or rules of conduct within

its schools. ......................................... 18

Maine’s tuition program is readily

distinguishable from Espinoza and

does not unconstitutionally

discriminate against religion. .......... 24

CONCLUSION ....................................................... 30

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Board of Education, Island Trees Union Free

School District No. 26 v. Pico,

457 U.S. 853 (1982) ........................................... 20

Blount v. Department of Education & Cultural

Services,

551 A.2d 1377 (Me. 1988) ................................. 10

Brown v. Board of Education,

347 US 483, 493 (1954) ....................................... 8

Donahoe v. Richards,

38 Me. 379 (1854) ................................................ 9

Edwards v. Aguillard,

482 U.S. 578 (1987) ..................................... 20, 22

Epperson v. Arkansas,

393 U.S. 97 (1968) ....................................... 20, 22

Espinoza v. Montana Department of Revenue,

140 S. Ct. 2246 (2020) ................................ passim

Eulitt ex rel. Eulitt v. Maine, Department of

Education,

386 F.3d 344 (1st Cir. 2004) ............................. 17

Hazelwood School District v. Kuhlmeier,

484 U.S. 260 (1988) ........................................... 10

Horne v. Flores,

557 U.S. 433 (2009) ........................................... 11

Jefferson v. Hackney,

406 U.S. 535 (1972) ........................................... 12

Martinez v. Bynum,

461 U.S. 321, 329 (1983) ............................... 8, 11

Milliken v. Bradley,

418 U.S. 717 (1974) ..................................... 11, 19

Missouri v. Jenkins,

515 U.S. 70 (1995) ............................................. 10

Rust v. Sullivan,

500 U.S. 173 (1991) ........................................... 21

San Antonio Independent School District v.

Rodriguez,

411 U.S. 1, 35, 39–40 (1973) ...................... passim

School District of Abington Township, Pennsylvania

v. Schempp,

374 U.S. 203, 225 (1963) ............................... 4, 22

Trinity Lutheran Church of Columbia, Inc. v.

Comer,

137 S. Ct. 2012 (2017) ................................... 5, 26

Zelman v. Simmons-Harris,

536 U.S. 639 (2002) ........................................... 26

Statutes

Me. Stat. tit. 5, § 4552 ...................................... 17, 23

Me. Stat. tit. 5, § 4602 ...................................... 17, 23

Me. Stat. tit. 5, § 4553(2-A).................................... 23

Me. Stat. tit. 20-A, § 1(23)...................................... 14

Me. Stat. tit. 20-A § 2(1)......................................... 13

Me. Stat. tit. 20-A, § 2701 ...................................... 14

Me. Stat. tit. 20-A, §2901 ...................................... 16

Me. Stat. tit. 20-A, §2902 ...................................... 16

Me. Stat. tit. 20-A, §2951(2) ............................ 15, 29

Me. Stat. tit. 20-A, § 2952 ...................................... 17

Me. Stat. tit. 20-A, § 2954 ...................................... 17

Me. Stat. tit. 20-A, §4704 ...................................... 16

Me. Stat. tit. 20-A, §§ 5203-5204 .................... 14, 15

Me. Stat. tit. 20-A, §6209 ...................................... 16

Me. Stat. tit. 20-A, §§15671 - 15695 ...................... 15

Tenn. Code Ann. § 49-6-1019 (2021) ..................... 21

Other Authorities

121 Me. Legis. Rec. H-584 (1st Reg. Sess., May 13,

2003) .................................................................. 17

Chief Justice John G. Roberts Jr., 2019 Year-End

Report on the Federal Judiciary 2 (2020),

https://www.supremecourt.gov/publicinfo/yearend/2019year-endreport.pdf ............................. 20

Education Commission of the States, 50-State

Review (2016), https://www.ecs.org/wpcontent/uploads/2016-Constitutionalobligations-for-public-education-1.pdf ............... 8

Jeremiah Perley, Debates, Resolutions, and Other

Proceedings of the Convention of Delegates

(1820) ................................................................. 10

Me. Const. art. VIII, pt. 1, § 1 ........................ 3, 9, 13

INTEREST OF THE AMICUS CURIAE1

Public Funds Public Schools (“PFPS”) is a national

campaign to ensure that public funds for education

are used to maintain, support, and strengthen public

schools. PFPS opposes all forms of private school

vouchers and other diversions of public funds from

public education. PFPS uses a range of strategies to

protect and promote public schools and the rights of

all students to a free, high-quality public education,

including participation in litigation challenging

vouchers and other diversions of public funds to

private schools.

PFPS is a partnership between Education Law Center

(“ELC”) and the Southern Poverty Law Center

(“SPLC”), which have participated as amici curiae or

as counsel in cases promoting public education rights

in states across the United States. ELC, based in

Newark, New Jersey, is a nonprofit organization

founded in 1973 that advocates on behalf of public

school children to enforce their right to education

under state and federal laws across the United States.

SPLC, based in Montgomery, Alabama, is a nonprofit

civil rights organization founded in 1971 that serves

as a catalyst for racial justice in the South and beyond,

working in partnership with communities to

dismantle white supremacy, strengthen intersectional

movements, and advance human rights.

All parties consented to the filing of this brief. No counsel

for a party authored this brief in whole or in part, and no counsel

or party other than amicus or their counsel made a monetary

contribution intended to fund the preparation or submission of

this brief.

SUMMARY OF ARGUMENT

Maine’s tuition program—in effect for over 125

years—ensures that all students across the State can

receive the public education guaranteed to them by

Article VIII, pt. 1, § 1 of the Maine Constitution.

Through the tuition program, the Maine Legislature

has authorized private schools that meet specified

criteria to stand in for Maine’s public schools where

students live in rural areas of the State without a

public school.

1. This Court has made clear that the

regulation of public education falls squarely within

the authority of the states and need only satisfy

rational basis review. San Antonio Indep. Sch. Dist.

v. Rodriguez, 411 U.S. 1, 35, 39–40 (1973). The

Federal Constitution neither addresses nor

guarantees public education; instead, the provision of

public education is an affirmative obligation

enshrined in the constitutions of all fifty states.

Accordingly, states are afforded great deference in

their decisions regarding the delivery of public

education.

Those determinations must 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,” id. at 39, and

are “an inappropriate candidate for strict judicial

scrutiny,” id. at 44.

Maine’s tuition program easily satisfies

rational basis review. The program is rationally

related to Maine’s legitimate—indeed core—interest

in providing public education. Because of Maine’s

distinct history and geography, school districts in

some sparsely populated, rural areas do not operate

their own public schools. The tuition program enables

those school districts to provide students with a public

education by paying tuition either to another public

school district or to private schools that choose to

participate in the program. The participating private

schools must satisfy Maine’s carefully designed

criteria for what constitutes an appropriate public

education for its children. Among other things, Maine

requires participating private schools to be

nonsectarian—just as Maine’s conventional public

schools must be. That is a rational decision entitled

to deference.

States have broad control over the operation of

their public schools, including what is taught and how

the education is delivered. Indeed, one of the few

restrictions on states’ authority over their public

schools is the Establishment Clause prohibition

against offering a curriculum that is tailored to the

religion of a particular sect. See, e.g., Sch. Dist. of

Abington Twp., Pa. v. Schempp, 374 U.S. 203, 225

(1963).

Accordingly, Maine could not support

religious curricula or otherwise promote religious

rules of conduct within its public schools. For the

same reason, Maine can—if not must— require that

private schools participating in the tuition program be

“nonsectarian” in order to stand in for its secular

public schools.

In sum, the Maine tuition program does

nothing more than to require that private schools

choosing to participate in a program whereby they

stand in for public schools be nonsectarian. That is a

rational decision entitled to deference.

Maine’s tuition program does not

unconstitutionally discriminate against religion by

requiring that participating private schools be

nonsectarian. Unlike a “voucher” or “school choice”

program, Maine’s program does not subsidize private

education as an alternative to an available public

school. Instead, the tuition program enables rural

school districts without their own public schools to

provide their children with a public education by

utilizing their public school funding to pay tuition at

private schools that meet Maine’s specified criteria.

Those criteria ensure that private schools choosing to

stand in for public schools meet the standards Maine

has determined to be appropriate for all schools

providing the public education guaranteed by Maine’s

Constitution. Moreover, because the Maine tuition

program is designed to fulfill an affirmative

constitutional obligation of the State, its tuition

program is readily distinguishable from the

discretionary grant programs at issue in Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137 S.

Ct. 2012 (2017) and Espinoza v. Montana Dep’t of

Revenue, 140 S. Ct. 2246 (2020).

In sum, Maine’s tuition program is rationally

related to its legitimate interest in providing a public

education for students across the State, specifically

those in school districts where public schools are not

available. And just as Maine can (indeed, must)

ensure its public schools are nonsectarian, Maine does

not unconstitutionally discriminate against religion

by imposing the requirement that private schools

agreeing to stand in the shoes of its public schools by

way of the tuition program offer a nonsectarian

education as well.

Accordingly, the Court should affirm the

judgment of the Court of Appeals for the First Circuit.

ARGUMENT

Since the nineteenth century, the Maine

Legislature has authorized local school districts to pay

tuition to private schools in limited circumstances

where access to a public school is not readily available.

This tuition program is part of the law governing

Maine’s public school system.

Maine’s tuition program is not a “voucher” or a

“school choice” initiative through which students are

offered financial assistance to attend a private school

as an alternative to an available local public school.

Rather, the tuition program allows Maine school

districts with no public school to utilize public

education funding to pay tuition for students to attend

private schools that agree to meet state-mandated

criteria required for the provision of public education.

In other words, the participating private schools agree

to stand in the shoes of public schools for students in

school districts where no public school is available.

Subject only to rational basis review under the

Federal Constitution, the Maine Legislature has the

same broad authority to determine how best to

implement its duty to provide a suitable public

education through the tuition program as it does to

regulate its own public schools directly. Maine’s

decision to include only secular private schools in the

tuition program easily satisfies the rational basis test.

Maine’s tuition program is rationally

related to a legitimate state interest.

Providing public education is a core

state function subject to rational

basis review.

As this Court has noted, “education is the most

important

function

state

and

local

governments.” Brown v. Bd. of Educ., 347 US 483,

493 (1954); see also Martinez v. Bynum, 461 U.S. 321,

329 (1983). Education “is not among the rights

afforded explicit or implicit protection under the

Federal Constitution. Nor [does the Court] find any

basis for saying it is implicitly so protected.”

Rodriguez, 411 U.S. at 35 (1973). Recognizing that

education is a critical state obligation and function,

this Court has held that the states’ decisions

regarding the provision of public education are subject

only to rational basis review. Id. at 39–40.

Every state recognizes the critical importance

of making a free public education universally

available to all resident children. In fact, each state

constitution expressly recognizes a right to public

education. Educ. Comm’n of the States, 50-State

Review

9–22

(2016),

https://www.ecs.org/wpcontent/uploads/2016-Constitutional-obligations-forpublic-education-1.pdf (detailing an affirmative

constitutional obligation in all fifty states to provide a

free public education).

Maine’s Constitution, like those of other states,

affirmatively obligates the State Legislature to make

“suitable provision” to maintain and support public

schools:

A general diffusion of the advantages of

education being essential to the

preservation of 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. As codified in its

constitution, Maine has a fundamental interest in

ensuring an educated populace, and its Legislature

has a paramount duty to make public education

available to all resident children.

Likewise, the Maine judiciary has long

recognized that “the constitution of this State imposes

on the Legislature the duty to make suitable

provisions for the support and maintenance of the

public schools” precisely because “[t]he education of

the people is regarded as so much a matter of public

concern, and of such paramount importance.”

Donahoe v. Richards, 38 Me. 379, 391 (1854); see also

Blount v. Dep’t of Educ. & Cultural Servs., 551 A.2d

1377, 1381 (Me. 1988); Jeremiah Perley, Debates,

Resolutions, and Other Proceedings of the Convention

of Delegates 211–12 (1820).

Recognizing that state and local governments

are best suited to decide how to fulfill their affirmative

obligation to provide public education, this Court has

consistently deferred to their determinations. See,

e.g., Hazelwood Sch. Dist. v. Kuhlmeier, 484 U.S. 260,

273 (1988) (“[T]he education of the Nation’s youth is

primarily the responsibility of parents, teachers, and

state and local school officials, and not of federal

judges.”). As Justice Thomas noted, “[f]ederal courts

do not possess the capabilities of state and local

governments in addressing difficult educational

problems.” Missouri v. Jenkins, 515 U.S. 70, 131

(1995) (Thomas, J., concurring).

In the same vein, this Court made clear in

Rodriguez that “[q]uestions of federalism are always

inherent in the process of determining whether a

State’s laws are to be accorded the traditional

presumption of constitutionality, or are to be

subjected instead to rigorous judicial scrutiny.” 411

U.S. at 44 (declining to apply strict scrutiny where the

Court would be forced to “abrogate systems of

financing public education presently in existence in

virtually every State”). These federalism concerns

have led the Court to grant significant deference to

states, particularly related to decisions on education

policies and budgetary priorities. See id. at 58 (“The

consideration and initiation of fundamental reforms

with respect to state . . . education are matters

reserved for the legislative processes of the various

States, and we do no violence to the values of

federalism and separation of powers by staying our

hand.”); see also Horne v. Flores, 557 U.S. 433, 448

(2009) (“Federalism concerns are heightened when . .

a federal-court decree has the effect of dictating state

or local budget priorities.”).

This Court thus has cautioned that the federal

judiciary “is well advised to refrain from imposing on

the States inflexible constitutional restraints that

could circumscribe or handicap the continued

research and experimentation so vital to finding even

partial solutions to educational problems and to

keeping abreast of ever-changing conditions.”

Rodriguez, 411 U.S. at 43. As this Court has held, the

determination of what constitutes appropriate

education “remains the province of the States and the

local schools.” Horne, 557 U.S. at 469; see Martinez,

461 U.S. at 329 (“[L]ocal autonomy has long been

thought essential both to the maintenance of

community concern and support for public schools and

to quality of the educational process.”) (quoting

Milliken v. Bradley, 418 U.S. 717, 741–42 (1974)).

Consistent with these principles, this Court has

recognized “the very complexity of the problems of

financing and managing a statewide public school

system suggests that ‘there will be more than one

constitutionally permissible method of solving them,’

and that, within the limits of rationality, ‘the

legislature’s efforts to tackle the problems’ should be

entitled to respect.” Rodriguez, 411 U.S. at 42 (citing

Jefferson v. Hackney, 406 U.S. 535, 546–47 (1972)).

In sum, there is no right or guarantee to public

education under the Federal Constitution. Id. at 35.

Rather, public education is an affirmative state

constitutional obligation and therefore “should 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.” Id. at 38

(distinguishing affirmative rights from instances in

which states “deprive[],” “infringe[],” or “interfere[]”

with the free exercise of some such fundamental

personal right or liberty). Thus, rational basis is the

appropriate standard for federal courts when

reviewing the means by which states comply with

their state constitutional duty to provide and deliver

public education to their children. Id. at 44. (stating

that the determinations by states of how to fulfill their

obligation to provide public education is “an

inappropriate candidate for strict judicial scrutiny”).

As such, this Court need only determine whether a

state’s public education decision “bears some rational

relationship to a legitimate state purpose.” Id.

Accordingly, Maine’s decisions concerning its

provision of public education, including those

regarding the tuition program at issue in this case, are

subject to rational basis review. So long as its

determinations are rationally related to Maine’s

legitimate state interest in the “suitable provision” of

public education, Me. Const. Art. VIII, pt. 1, § 1,

Maine’s determinations do not run afoul of the

Federal Constitution.

Maine’s

tuition

program

rationally related to its legitimate

state interest in providing public

education.

Maine’s tuition program, which is a

longstanding component of the State’s public school

system, easily satisfies the rational basis test. The

program is rationally related to Maine’s legitimate—

indeed, core — interest in providing an appropriate

education for all of the State’s children.

To implement its constitutional duty to ensure

“suitable provision . . . for the support and

maintenance of public schools,” Me. Const. art. VIII,

pt. 1, § 1, the Legislature has created local school

administrative units (“school districts”) to control and

manage Maine’s public schools. See Me. Stat. tit. 20A, § 2(1).

Given Maine’s unique history and

geography, some school districts in rural areas with

small populations do not have their own public

schools. Under Maine education law, the tuition

program authorizes those school districts to provide

their children a public education by paying tuition to

any approved public school in an adjoining school

district or to an approved private school. Id. §§ 5203–

5204. Private schools may choose to qualify for and

participate in the program, thereby agreeing to accept

public funds to provide children living in an area

without a local public school the public education

required by Maine’s constitution. See id. § 1(23)

(“‘Private school approved for tuition purposes’ means

a private school approved for the receipt of public

funds.”).

Under the statutory provisions governing

Maine’s tuition program, a school district that does

not operate its own public schools can contract with

either an out-of-district public school or a private

nonsectarian school to provide a public education for

all children in the school district. Id. §§ 5203(3)

(elementary), 5204(3) (secondary); see also id. 2701

(authority to contract for school privileges). If the

school district decides not to enter into such an

exclusive contract, the law allows the district to fund

attendance at public or nonsectarian private schools

selected by parents, provided that any such private

school is approved by the State. Id. §§ 5203(4)

(elementary), 5204(4) (secondary). A school district

thus satisfies its statutory obligation to afford its

children a public education by paying tuition to

participating public and private schools. Id. §§

5203(2)–(4) (elementary), 5204(2)–(4) (secondary).

Under Maine’s formula for funding its public

schools, school districts receive state funding based on

“pupil count,” among other factors. Id. §§ 15671,

15674. School districts must also contribute a local

share. Id. §15671-A. In a school district that does not

operate a public school, the pupil count includes those

children covered by the tuition program. Id. §

15674(2). The school district receives state funding

for those children and uses that funding, together

with its local contribution, to pay tuition to the public

or private schools attended by children from the

school district. Id. §§ 5203(2)–(4), 5204(2)–(4).

The tuition rate paid by the school districts is

the statewide average per-pupil cost in public schools

under Maine’s school funding formula. Id. § 15676-A.

As with the funding of public schools, the state and

local share of private school tuition that the school

district pays under the tuition program is determined

through the public-school funding formula enacted by

the Legislature. Id. §§15671–15695. Thus, the tuition

program is an integral part of Maine’s provision and

financing of public education.

To assure that the private schools approved to

utilize the tuition program provide what Maine deems

an adequate and appropriate education for children

receiving their public education at a participating

private school, Maine has established criteria that

these schools must satisfy. In addition to being

“nonsectarian” under Section 2951(2), a private school

must comply with the requirements for basic school

approval under Section 2901 by adhering to the

State’s hygiene and health and safety laws, and also

either be (1) accredited by the New England

Association of Schools and Colleges or (2) approved

“for attendance purposes.” Id. § 2901(2).

To be approved “for attendance purposes,” a

private school must satisfy multiple requirements,

such as course and curriculum obligations. Id. § 2902.

Those requirements include offering a set of courses

prescribed by the Maine Commissioner of Education

in the areas of reading, mathematics, science

(specifically, “in those content areas concerning cells

and continuity and change”), world languages, social

studies, and health, physical education and wellness.

Id. §§ 4704, 6209.

The Maine Department of

Education sets parameters for these areas of essential

instruction, while stipulating “accommodation

provisions for instances where course content conflicts

with sincerely held religious beliefs and practices of a

student’s parent or guardian.” Id. § 6209.

Private schools approved for attendance

purposes must also meet the State’s public education

requirements regarding accountability standards,

teacher certification, length of school years and days,

class size, and other standards governing the

substance and quality of education for Maine

students. Id. § 2902. Additionally, unlike other

private schools, those private schools participating in

the tuition program must comply with the

antidiscrimination requirements contained in the

Maine Human Rights Act. Me. Stat. tit. 5, §§ 4552,

4602. The Maine Commissioner of Education closely

monitors participating private schools through

reporting and auditing requirements to ensure

compliance with the requirements set by the State.

Me. Stat. tit. 20-A, §§ 2952, 2954.

In short, participating private schools agree

with districts to provide education up to the same

standard as all Maine public schools—satisfying the

State’s basic education requirements, including that

public schools be secular and otherwise meet the

quality and accountability standards enumerated

above.

Those specifications are objective and

unambiguous, evidencing the Legislature’s clear

intent to provide equal public education opportunities

to all Maine children using standards that Maine has

determined will accomplish that goal.2

As the First Circuit observed in its 2004 ruling

upholding the secular-school limitation on the tuition program,

“the legislative history [of Section 2951(2)] clearly indicates” that

a key reason for this limitation was the State’s “interest[] in

concentrating limited state funds on its goal of providing secular

education.” Eulitt ex rel. Eulitt v. Me., Dep’t of Educ., 386 F.3d

344, 356 (1st Cir. 2004); see also, e.g., 121 Me. Legis. Rec. H-584

(1st Reg. Sess., May 13, 2003) (statement of Representative

Cummings) (“The resources . . . to drain off from public schools to

[repeal the tuition program’s secular school limitation] will be an

endangerment to the quality of our public schools”).

The critical point is that Maine’s tuition

program is a means of providing an essential public

service

affirmatively

mandated

Maine’s

constitution. The private schools that agree to

participate in the tuition program do not provide an

alternative to an otherwise available public

education. To the contrary, those private schools,

pursuant to Maine’s state statute, directly provide

public education for children in districts that do not

have their own public school.

This carefully crafted tuition program to utilize

approved private schools to provide a public education

for children in school districts with no public school is

rationally related to Maine’s legitimate interest in

providing what the State deems to be an appropriate

public education for its children. For the reasons this

Court has emphasized, Maine has broad discretion in

determining the content and means of delivering that

public education to communities throughout the

State. That discretion includes determining what

criteria must be met by private schools that agree to

participate with school districts in the delivery of

public education on behalf of the State. Maine’s

decision to exclude schools that incorporate religion

into their daily curricula—just as Maine prohibits its

public schools from incorporating religion into their

daily curricula—is a rational decision entitled to

deference.3

II.

Maine’s tuition program does not

unconstitutionally discriminate against

religion.

In providing public education, Maine is not

obligated—and indeed, is not permitted—to include

religion in its public schools’ curricula. For similar

reasons, Maine is not constitutionally obliged to allow

private schools that provide religious instruction to be

part of the State’s system of public education through

its tuition program.

Accordingly, by imposing

nonsectarian conditions for participation, Maine does

not unconstitutionally discriminate against religion.

In providing public education,

Maine is not obliged to support

religious curricula or rules of

conduct within its schools.

As explained in detail in Part I, states have

broad discretion in determining how to operate their

public schools. See Milliken, 418 U.S. at 741–42.

Robust public debate surrounds what subjects should

Maine’s tuition program would also pass strict scrutiny

review as the tuition program is narrowly tailored to advance a

government interest of the “highest order.” Espinoza, 140 S. Ct.

at 2260. However, this Court need not reach that issue in this

case.

be taught in schools and with what emphasis. See

Chief Justice John G. Roberts Jr., 2019 Year-End

Report on the Federal Judiciary 2 (2020),

https://www.supremecourt.gov/publicinfo/yearend/2019year-endreport.pdf (noting that “civic

education has fallen by the wayside”). Central to state

control over the public education is the state’s ability

to select the subjects taught in its classrooms and the

specifics of how those subjects are conveyed to its

children.

See, e.g., Rodriguez, 411 U.S. at 49;

Epperson v. Ark., 393 U.S. 97, 107 (1968).4

Thus, a state may insist, for example, that its

public elementary schools teach arithmetic, language,

arts, and social studies, and require its public high

schools to teach more advanced math, chemistry, and

history. Subject only to Federal Constitutional and

statutory limitations, a state can even mandate that

its public schools not offer classes on particular topics,

such as fashion, criminal procedure, and as more

Justice Powell, who served as a member and president

of the Richmond Public School Board and as a member of the

Virginia Board of Education, repeatedly articulated the

importance of state control over its public school curriculum. See

Edwards v. Aguillard, 482 U.S. 578, 597 (1987) (Powell, J.,

concurring) (“[N]othing in the Court’s opinion diminishes the

traditionally broad discretion accorded state and local school

officials in the selection of the public school curriculum.”); Bd. of

Educ., Island Trees Union Free Sch. Dist. No. 26 v. Pico, 457 U.S.

853, 893 (1982) (Powell, J., dissenting) (“States and locally

elected school boards should have the responsibility for

determining the educational policy of the public schools”).

recent controversies show, critical race theory. See,

e.g., Tenn. Code Ann. § 49-6-1019 (2021) (prohibiting

Tennessee public schools from teaching in their

curricula that a person “is inherently privileged,

racist, sexist, or oppressive”).

Similarly, a state can—and must—prohibit its

schools from offering classes that teach religious

beliefs or offer religious instruction. By doing so, a

state does not unconstitutionally discriminate against

religion, just as a state does not unconstitutionally

discriminate on the basis of gender by opting not to

offer women’s studies. See Rust v. Sullivan, 500 U.S.

173, 193 (1991) (“The Government can, without

violating the Constitution, selectively fund a program

to encourage certain activities it believes to be in the

public interest, without at the same time funding an

alternative program which seeks to deal with the

problem in another way. In so doing, the Government

has not discriminated on the basis of viewpoint; it has

merely chosen to fund one activity to the exclusion of

the other.”).

This autonomy is not to say that the Federal

Constitution imposes no limitations on a state’s

ability to operate its public schools. In particular, the

Establishment Clause limits public schools from

offering a curriculum that is tailored a particular

religious sect. A public school class on religion or on

the Bible may be appropriate, but only if the class is

“presented objectively as part of a secular program of

education.” See, e.g., Schempp, 374 U.S. at 225.

In Epperson, for example, this Court struck

down an Arkansas law prohibiting the teaching of

human evolution in Arkansas’ public schools as

violative of the First Amendment because states

cannot tailor curricula to “the principles or

prohibitions of any religious sect or dogma.” 393 U.S.

at 106. Similarly, in Aguillard, this Court struck

down a Louisiana law requiring that creationism be

taught in public schools because the law was

specifically intended to advance a particular religion.

482 U.S. at 580-81; see also Schempp, 374 U.S. at 226

(“In the relationship between man and religion, the

State is firmly committed to a position of neutrality.”).

Needless to say, these cases do not suggest that states

must support religion in public schools. To the

contrary, this Court’s precedents establish that the

Federal Constitution strictly limits the ability of

states to advance any and all particular religious

beliefs in their public schools.

The same analysis applies to Maine’s tuition

program. That program is a means by which Maine

delivers public education. Under the program, Maine

provides a free public education for some children—

specifically, those in a school district without a public

school—by paying tuition to private schools capable

of, and willing to, accept the State’s criteria for

approval. Those approved private schools receive

public school funding in exchange for their agreement

to effectively function as Maine public schools for

certain students; those willing private schools provide

the public schooling that school districts would

otherwise provide. Accordingly, just as Maine may

close a public school that fails to meet state

requirements, Maine may refuse to include in the

tuition program schools that fail to meet the secular

specifications for a curriculum the State has

prescribed for its public schools as well as the private

schools that choose to participate in its tuition

program.

Moreover, permitting private schools accepting

public funds to discriminate against students on

account of religious identity or sexual orientation

would directly undermine Maine’s stated public policy

“to prevent discrimination in . . . access to public

accommodations on account of race, color, sex, sexual

orientation, physical or mental disability, religion,

ancestry or national origin.” Me. Stat. tit. 5, § 4552.

In fact, Maine’s Human Rights Act specifically

prohibits this discrimination within all public

educational programs in the State—including “any

private school or educational program approved for

tuition purposes.” Id., §§ 4553(2-A), 4602. Maine’s

laws therefore honor non-discrimination principles

that are central to the State’s vision of an appropriate

public education.

To illustrate, Bangor Christian Schools, which

Petitioners Carson and Gillis seek to have their

children attend by way of Maine’s tuition program,

does not believe there is any way to separate its

religious instruction from its academic instruction—

religious instruction is “completely intertwined and

there is no way for a student to succeed if he or she is

resistant to the sectarian instruction.” J.A. at 85–86.

For example, one of the Bangor Christian Schools’

objectives in its fifth-grade social studies class is to

“[r]ecognize God as Creator of the world.” J.A. at 87.

Likewise, its ninth-grade social studies class seeks to

“[r]efute the teachings of the Islamic religion with the

truth of God’s Word.” J.A. at 88. Pursuant to Bangor

Christian Schools’ religious objectives, an openly gay

student would be subject to expulsion. J.A. at 83–84.

Similarly, the educational philosophy of

Temple Academy, which Petitioners Nelson seek to

have their children attend through the tuition

program, “is based on a thoroughly Christian and

Biblical world view” and its academic growth

objectives include “provid[ing] a sound academic

education in which the subject areas are taught from

a Christian point of view[.]” J.A. at 92–93. Temple

Academy’s written admissions policy states that

“students from homes with serious differences with

the school’s biblical basis and/or its doctrines will not

be accepted.” J.A. at 94. Thus, Temple Academy

would not admit a student who resides in a two-father

or two-mother household and likely would not admit

a student from a Muslim household. J.A. at 94–95.

Assuredly, Maine could not support in its public

schools a religious curriculum or school policies such

as those at Bangor Christian Schools or Temple

Academy. In fact, a public school is prohibited from

infusing religion into its curriculum like Bangor

Christian Schools. Similarly, a public school cannot

expel a student on the basis of the student’s sexual

orientation; public schools are open to all students.

Thus, it is entirely rational for Maine to choose to not

approve for participation in the tuition program a

private school similar to Bangor Christian Schools or

Temple Academy that teaches religious beliefs or

engages in discrimination, so that Maine can provide

the publicly funded education the State owes to all of

its children.

Maine’s tuition program is readily

distinguishable from Espinoza and

does

not

unconstitutionally

discriminate against religion.

Petitioners and their amici suggest that

Maine’s tuition program violates the Federal

Constitution

because

the

tuition

program

impermissibly discriminates against religion. That

assertion is not correct.

It is true, of course, that states cannot

discriminate on the basis of religion when states

decide, as a discretionary matter, to disburse financial

assistance to entities that provide various services.

Thus, for example, this Court’s precedents imply that

states choosing to provide financial assistance

programs cannot exclude religious schools solely on

the basis of their religious status. See Zelman v.

Simmons-Harris, 536 U.S. 639, 653–54 (2002)

(involving an Ohio voucher program permitting public

funds to be used for religious schools); Trinity, 137 S.

Ct. 2021 (involving a Missouri program that denied

religious schools grants for playground resurfacing

solely on account of the schools’ religious status, while

providing grants to similarly situated non-religious

groups).

Applying this principle in Espinoza v. Montana

Department of Revenue, 140 S. Ct. 2246 (2020), the

Court struck down a Montana program that provided

scholarships for children to attend private schools but

forbade the children from using the scholarships to

attend private religious schools. Id. at 2251. The

Court explained that the prohibition unlawfully

discriminated against religion because it limited use

of the scholarships “solely because of the religious

character of [a] school.” Id. at 2255.

In contrast to the scholarship program at issue

in Espinoza, Maine’s tuition program does not

subsidize private education as an alternative to an

available public school. Rather, Maine’s program

makes available a public education for all children by

paying tuition to private schools that agree to accept

the conditions that Maine attaches to permitting

private schools to educate public school students. In

other words, Maine’s program provides tuition

payments to private schools to deliver the public

education guaranteed under Maine’s constitution.

For children in school districts without a public

school, the tuition program is the only option for a

publicly funded education, and the private schools

participating in the program must meet curricular

requirements and other standards equivalent to what

students are guaranteed in a public school.

As the Court explained in Espinoza, “[a] State

need not subsidize private education. But once a

State decides to do so, it cannot disqualify some

private schools solely because they are religious.” Id.

at 2261. Here, Maine has not decided to subsidize

private education. Maine’s tuition program serves a

wholly different function of enabling school districts

to pay private schools—using public school funding—

to educate children where no public school is available

to do so. Effectively, the tuition program is a

fundamental component of the State’s public

education system, operating to provide the public

education that Maine must offer for all its children.

Viewed in this proper context, Maine has ample

authority to limit private school participation to those

that provide secular education consistent with

Maine’s public education standards.

Thus, unlike the scholarship program in

Espinoza, which subsidized private education as an

alternative to public schools, the purpose of Maine’s

program is to allow local school districts with no

public school to use their public school funding to

make tuition payments to private schools that agree

to deliver education under public school standards.

Maine’s program ensures that those students receive

the same benefits of a secular, public education as do

students in school districts with their own public

schools.

Nor does the tuition program interfere with the

ability of private schools to practice religion. Private

schools may choose to adopt a religious curriculum or

promote other religious practices. Those schools

simply forego the option to participate in the tuition

program. By excluding schools that infuse religion

into their curricula from its tuition program, Maine is

ensuring that the State provides an appropriate

public education for children with no local public

school. The private schools that choose to seek

approval to educate publicly-funded students are

“standing in the shoes” of the Maine public schools

and are ultimately providing this core public function

on Maine’s behalf—an arrangement fundamentally

different from the scholarship program at issue in

Espinoza.

Another meaningful difference between the

Montana scholarship program at issue in Espinoza

and Maine’s tuition program is that the Maine tuition

program does not exclude a private school “solely

because of the religious character of the school.”

Espinoza, 140 S. Ct. at 2255. Maine’s program does

not automatically exclude schools with a religious

affiliation—i.e., a religious status. To the contrary, in

certifying private schools for its tuition program,

Maine focuses on the substance of the education

provided by a private school’s education to determine

whether the school incorporates religion in its

curriculum—in other words, Maine focuses on the use

of the public funds, not the religious identity or status

of the private school.

Indeed, schools with religious affiliations that

meet Maine’s criteria can be approved for

participation in the tuition program. Specifically, in

addressing the “nonsectarian” requirement in Section

2951(2), Maine’s Commissioner of Education

explained, “[w]hile affiliation or association with a

church or religious institution is one potential

indicator of a sectarian school, it is not dispositive.

The Department’s focus is on what the school teaches

through its curriculum and related activities, and how

the material is presented.” Pet. App. at 35. Maine’s

Attorney General has confirmed the Commissioner’s

statement. Pet. App. at 35.

Proving this point, Maine has certified

Cardigan Mountain School for purposes of the tuition

program. Cardigan Mountain School is a private

school in New Hampshire that teaches “universal

moral and spiritual values,” both “in and out of the

classroom” and even has compulsory weekly Chapel

meetings.

Notwithstanding Cardigan Mountain

School’s integration of a religious component in its

operation, Maine approved the private school to

participate as an adequate “stand-in” for a Maine

public school.

In short, even if the Federal Constitution

forbids Maine from refusing to certify a school solely

because of its religious status, Maine’s tuition

program does not discriminate in that way.

Religiously affiliated private schools can participate,

so long as the schools meet the requirements specified

by Maine law.

CONCLUSION

The judgment of the Court of Appeals for the

First Circuit should be affirmed.

Respectfully submitted,