On October 29, 2020, the Maine Department of Education received word of the Court of Appeals for the First Circuit’s decision in favor of Commissioner Pender Makin in Carson v. Makin. This decision of the Court of Appeals affirms the earlier decision of the United States District Court for the District of Maine.

Maine’s Constitution requires the local provision of public education; however, the expansive landscape and small communities of Maine are not conducive to the operation of a school within every school administrative unit. For this reason, Maine has a long-established “tuition” program through which the children within a community that cannot or does not operate a public school are permitted to access a public education through the payment of state and local funds to a nearby public or approved private school.  Public dollars cannot be used for sectarian schools; however, a family is not prevented from accessing, at their own cost, a religious education.

“As the Commissioner of Education, I am charged with the responsibility of ensuring that public funds allocated for education in Maine are spent within the legal and intended use of those funds,” stated Commissioner Pender Makin when learning of the decision. “I am pleased that the court has recognized the lawfulness of our fiscal stewardship.”

The case was argued before the Court of Appeals by Assistant Attorney General Sarah Forster on January 8, 2020.  Assistant Attorney General Forster and Deputy Attorney General Christopher Taub have represented the Commissioner throughout the legal proceedings in this matter.

“I am pleased that the First Circuit correctly found that Maine has created a narrowly tailored “tuition” program that responds to our unique need to ensure that a public education is available in school administrative units that do not operate public schools,” said Attorney General Aaron M. Frey regarding the court’s decision. “The Court recognized that because the only purpose of Maine’s program is to replicate the education that a student would receive at a public school, Maine is not discriminating based on the religious status of any private school. Rather, Maine is simply declining to pay for religious instruction that would be unavailable in a public school. In this way, Maine’s program is unlike the “no-aid” clause in the Montana Constitution at issue in the Supreme Court’s recent Espinoza decision, or any prior school choice program that has been subject to review.”

The decision in its entirety can be read, here.