Why Maine’s religious schools are likely to decline state funding

Why two Maine schools slated to receive public funds in the wake of the Supreme Court decision in Carson v. Makin will probably refuse to take the money.

Last week we reported that the U.S. Supreme Court struck down a Maine law that blocked private religious schools from receiving taxpayer-funded aid.

Carson v. Makin says the state cannot prohibit religious schools from receiving state-funded tuition assistance. After the decision, parents and religious education leaders rejoiced the Court mandated the state to fund religious schools.

Not so fast. On the day of the decision, Maine Attorney General Aaron Frey released a statement, saying, “While the Court’s decision paves the way for religious schools to apply to receive public funds, it is not clear whether any religious schools will do so.   Educational facilities that accept public funds must comply with antidiscrimination provisions of the Maine Human Rights Act, and this would require some religious schools to eliminate their current discriminatory practices.”

Frey said, “I intend to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination, intolerance, and bigotry.”

An editorial in the New York Times on June 24, 2022 (“There’s a Way to Outmaneuver the Supreme Court, and Maine Has Found It”) observes that in May 2021, after the Supreme Court agreed to hear the case, Maine passed (S.P. 544). This statute amended the Maine Human Rights Act to prohibit private schools (secular or religious) that receive taxpayer money from not discriminating based on gender identity or sexual orientation.

The decision in Carson v. Makin has an appendix that identifies “stipulated facts,” meaning that all sides agree that they are true.

Per Facts 89-92, Bangor Christian School (“BCS”) does not allow students who present as gay, lesbian, or transgender to attend. Fact 127 says, “If BCS did not have to make any changes in how it operates, it would consider accepting public funds for tuition purposes.”

The other school, Temple Academy, has a similar policy (page 95, facts 157-159). Fact 180 states, “Temple Academy does not know whether it would accept public funding for tuition purposes – it would have to see whether there were strings attached, and it does not know enough now to say yes.”

Fact 182 states, “Before accepting public funds for tuition purposes, Temple Academy would want to have in writing that the school would not have to alter its admission standards, hiring standards, or curriculum, and if it had that in writing, Temple Academy would consider accepting public funds for tuition purposes.”

Since the state of Maine would be violating the new statute, S.P. 544, if it put these exceptions in writing, there is very little chance Temple Academy will accept the money. Both schools seem very nervous about accepting the state funds because the state would want nondiscriminatory concessions in return for the money.

So what is next? The schools could theoretically sue the state, claiming that the failure to provide them with an exception that allows them to discriminate is itself discriminatory. But that is unlikely. Equally unlikely is that the schools will modify their policies to qualify for the funding.

So, taxpayer funding for private religious schooling in Maine may still be a long way off.