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Abstract

School choice advocates, such as the nonprofit libertarian law firm, The Institute for Justice, have spent decades arguing that states violate the Free Exercise Clause when they exclude private religious schools from public programs that otherwise provide public dollars to non-religious private schools. Recently, in Espinoza v. Montana Department of Revenue, the Supreme Court effectively agreed with that sentiment. After this victory, the Institute for Justice returned to the state of Maine to represent three sets of parents in a renewed effort to defeat Maine’s nonsectarian requirement in federal court. Maine’s nonsectarian requirement provides that private religious schools may not participate in Maine’s town tuitioning program, which allows students in towns that do not have public schools to receive state funding to attend a private or public school of their choice.

This Note analyzes that case: Carson ex rel. O.C. v. Makin. In Carson, the First Circuit affirmed the trial court’s decision that Maine’s nonsectarian requirement does not violate the Free Exercise Clause. I posit that the reasoning the First Circuit deployed in Carson may not be durable and that if the Supreme Court were to grant the plaintiff-appellants’ petition for certiorari, the Court would likely invalidate Maine’s nonsectarian requirement. I then analyze the effect the elimination of the nonsectarian requirement would have on Maine’s public schools and how school choice opponents may wish to move forward. More specifically, I suggest that Maine and the rest of the nation should consider investing in its public schools before outsourcing public education to private entities and interest groups.

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