Maine Is Sued for Seeking To Evade Supreme Court’s Ruling That Forbids Excluding Religious Schools From State’s Voucher Program

‘You can’t do an end run around the Supreme Court,’ a lawyer for a God-fearing family seeking a voucher to send a child to a parochial school says.

AP/Patrick Semansky
The Supreme Court building, June 27, 2022, at Washington. AP/Patrick Semansky

The campaign by the state of Maine to avoid having to obey a 2022 Supreme Court ruling prohibiting discrimination against religious schools in its voucher program will be challenged by a new lawsuit filed by a Catholic school and Catholic authorities in the state.

St. Dominic Academy, the Roman Catholic Diocese of Portland, and a local Maine family filed a lawsuit yesterday in the federal court for the District of Maine against the commissioner of the Maine Department of Education, A. Pender Makin, and members of the Maine Human Rights Commission.

In St. Dominic Academy v. Makin, they allege that the policies of the department and commission target religious schools to prohibit them from the school voucher program and violate the First Amendment’s Free Exercise Clause and the Fourteenth Amendment’s Equal Protection Clause.

In 2022, the Supreme Court ruled, in Carson v. Makin, that Maine’s education assistance program, which prohibited the use of vouchers for religious schools, violated First Amendment protections. Maine provides tuition assistance vouchers to families in rural areas where there are no available public schools so that children can attend private ones.

While the Nine was deciding Carson, Maine bureaucrats and the legislature, sensing that the state would lose the case, amended its human rights law to make it virtually impossible for religious schools to comply, thereby excluding them from the voucher program in all but name only.

“Maine’s attempts were open and blatant: craft a new policy to get out from under the clear pronouncement of Carson,” the plaintiff’s complaint says. “Maine implemented these changes to continue the exclusionary practices that the Supreme Court declared unconstitutional in Carson.”

“You can’t do an end run around the Supreme Court,” a senior counsel at Becket, a nonprofit law firm focused on religious liberty, Adele Keim, who represents the plaintiffs, tells the Sun. “The Supreme Court said excluding religious schools because they’re religious is wrong. And Maine needs to obey the law just like everybody else.”

Among the new laws and regulations plaintiffs contend exclude religious schools from the voucher program are ones stating that a school cannot allow for religious preferences in hiring, and that if a school permits religious expression it must allow any kind. 

“So a Catholic school that has Mass would also then have to have a religious service from another faith, like the Baptist students would be able to use the chapel,” Ms. Keim says. “A Catholic school can’t do that. That’s not what it means to be a religious school.”

The other major contention in the plaintiffs’ complaint is that Maine’s human rights act with regard to gender identity and sexuality makes it impossible for religious schools to comply with both their beliefs and the regulations. The act states that it is a violation of the law to prohibit a student from using the bathroom a aligns with gender identity, say, or a violation when a teacher “refuses to acknowledge a student’s gender identity.” Catholics, as is true of Muslims and other faiths, may have different views on gender identity and same sex-marriage than bureaucrats at Augusta. 

“Diocesan schools cannot delegate their responsibility to make religiously grounded decisions regarding appropriate student conduct to the Maine Human Rights Commission,” the plaintiffs’ complaint states. “The Catholic faith views parents as the primary educators of their children. … But the Commission, the state agency responsible for enforcing the Act, has interpreted the gender-identity nondiscrimination provision to require a school to facilitate a student’s efforts to change his or her gender identity even if the school knows that the student’s parents object.”

“You can’t have the Maine Human Rights Commission, which enforces the Maine human rights act, telling the Catholic school how it should teach what marriage is or what sex is or what gender is,” Ms. Keim says. “The Catholic school needs to be able to teach Catholic things about those.”

Plaintiffs also contend that the state of Maine intentionally crafted these regulations to exclude faith-based schools from the voucher program. Replying to a tweet saying Maine had outmaneuvered the Supreme Court by passing new rules for schools receiving vouchers, the then-speaker of the Maine house, Ryan Fecteau, tweeted, “Sure did. Anticipated the ludicrous decision from far-right SCOTUS.” The state’s attorney general also issued a statement saying he was “terribly disappointed and disheartened” by the Carson decision.

“The education provided by the schools at issue here is inimical to a public education. They promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” Maine’s attorney general, Aaron Frey, said.

The Catholic family suing in this case, Keith and Valori Radonis and their three children, want Maine to amend its law so they can get vouchers for their children to attend St. Dominic Academy. “All families should have the option to provide the education that’s right for their children using Maine’s tuition program, including religious families like ours,” they said in a statement.

Maine’s Department of Education has not replied to a request from the Sun for comment.

The New York Sun

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