Carson v. Makin

• Decision Date: 29 October 2020
• Docket Number: No. 19-1746,19-1746
• Citation: 979 F.3d 21
• Parties: David CARSON, AS parent and NEXT FRIEND OF O.C.; Amy Carson, as parent and next friend of O.C.; Alan Gillis, as parent and next friend of I.G.; Judith Gillis, as parent and next friend of I.G.; Troy Nelson, as parent and next friend of A.N. and R.N.; Angela Nelson, as parent and next friend of A.N. and R.N., Plaintiffs, Appellants, v. A. Pender MAKIN, in her official capacity as Commissioner of the Maine Department of Education, Defendant, Appellee.
• Court: U.S. Court of Appeals — First Circuit

979 F.3d 21

David CARSON, AS parent and NEXT FRIEND OF O.C.; Amy Carson, as parent and next friend of O.C.; Alan Gillis, as parent and next friend of I.G.; Judith Gillis, as parent and next friend of I.G.; Troy Nelson, as parent and next friend of A.N. and R.N.; Angela Nelson, as parent and next friend of A.N. and R.N., Plaintiffs, Appellants,

v.A. Pender MAKIN, in her official capacity as Commissioner of the Maine Department of Education, Defendant, Appellee.

No. 19-1746

United States Court of Appeals, First Circuit.

October 29, 2020

Timothy D. Keller, with whom Arif Panju, Institute for Justice, Austin, TX, Lea Patterson, First Liberty Institute, Jeffrey T. Edwards, PretiFlaherty, Portland, ME, Michael K. Whitehead, Jonathan R. Whitehead, and Whitehead Law Firm, LLC, were on brief, for appellants.

Vivek Suri, Assistant to the Solicitor General, with whom Eric S. Dreiband, Assistant Attorney General, Halsey B. Frank, United States Attorney, Elliott M. Davis, Acting Principal Deputy Assistant Attorney General, Thomas E. Chandler, Attorney, Civil Rights Division, U.S. Department of Justice, and Eric W. Treene, Attorney, Civil Rights Division, U.S. Department of Justice, Washington, DC, were on brief, for United States, amicus curiae.

Jay Alan Sekulow, Washington, DC, on brief for the American Center for Law and Justice, amicus curiae.

Russell Menyhart, Taft Stettinius & Hollister LLP, Indianapolis, IN, Leslie Hiner, EdChoice, Joshua D. Dunlap, and Pierce Atwood LLP, Portland, ME, on brief for EdChoice and Maine Heritage Policy Center, amici curiae.

Stephen C. Whiting, The Whiting Law Firm, Portland, ME, and Mordechai Biser, New York, NY, on brief for Agudath Israel of America, amicus curiae.

Sarah A. Forster, Assistant Attorney General, with whom Aaron M. Frey, Attorney General, Susan P. Herman, Deputy Attorney General, and Christopher C. Taub, Assistant Attorney General, were on brief, for appellee.

Zachary L. Heiden, Portland, ME, Emma E. Bond, Daniel Mach, Heather L. Weaver, Richard B. Katskee, Alex J. Luchenitser, Sarah R. Goetz, M. Freeman, and David L. Barkey, New York, NY, on brief for American Civil Liberties Union, American Civil Liberties Union of Maine Foundation, Americans United for Separation of Church and State, ADL (Anti-Defamation League), Central Conference of American Rabbis, Hindu American Foundation, Interfaith Alliance Foundation, Men of Reform Judaism, National Council of Jewish Women, People for the American Way Foundation, the Reconstructionist Rabbinical Association, Union for Reform Judaism, Women of Reform Judaism, American Atheists, Inc., Susan Marcus, James Torbert, and Theta Torbert, amici curiae.

Bruce W. Smith, Malina E. Dumas, Portland, ME, and Drummond Woodsum on brief for Maine School Boards Association and Maine School Superintendents Association, amici curiae.

Francisco M. Negrón, Jr., John Foskett, Boston, MA, and Valerio, Dominello & Hillman LLC on brief for National School Boards Association, Maine School Boards Association, Massachusetts Association of School Committees, New Hampshire School Boards Association, and Rhode Island Association of School Committees, amici curiae.

Samuel Boyd, Christine Bischoff, Lindsey Rubinstein, Southern Poverty Law Center, David G. Sciarra, Jessica Levin, Wendy Lecker, and Education Law Center on brief for Public Funds Public Schools, amicus curiae.

Alice O'Brien, Washington, DC, Eric Harrington, Kristen Hollar, Judith Rivlin, Jennifer Mathis, San Francisco, CA, Jennifer Reisch, Paul D. Castillo, Cleveland, OH, Andrew T. Mason, and Sunu Chandy on brief for National Education Association; American Federation of State, County and Municipal Employees, AFL-CIO; Bazelon Center for Mental Health Law; Center for Law and Education; Council of Administrators of Special Education; Equal Rights Advocates; GLSEN; Lambda Legal Defense and Education Fund, Inc.; Maine Education Association; National Women's Law Center; and Southern Education Foundation, amici curiae.

Samuel T. Grover, Patrick Elliott, Andrew Seidel, and Brendan Johnson on brief for Freedom from Religion Foundation, Inc., amicus curiae.

Before Barron, Circuit Judge, Souter,^* Associate Justice, and Selya, Circuit Judge.

BARRON, Circuit Judge.

The Maine Constitution instructs the state legislature "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. In response, the legislature passed a statute that obliges it to "enact the laws that are necessary to assure that all school administrative units make suitable provisions for the support and maintenance of the public schools" so that every school-age child in the state has "an opportunity to receive the benefits of a free public education." Me. Stat. tit. 20–A, § 2(1).

Maine faces a practical problem, however, in making good on this commitment: more than half of its 260 school administrative units ("SAUs") do not operate a public secondary school of their own. So, to ensure that those SAUs make the benefits of a free public education available no less than others do, Maine provides by statute that they may either (1) contract with a secondary school -- whether a public school in a nearby SAU or an "approved" private school -- for school privileges, id. §§ 2701-2702, 5204(3), or (2) "pay the tuition ... at the public school or the approved private school of the parent's choice at which the student [from their SAU] is accepted," id. § 5204(4).

In this appeal, we consider a suit concerning this tuition assistance program that three sets of parents (and their children, for whom they sue as next friends) brought in 2018 against the Commissioner ("Commissioner") of the Maine Department of Education ("Department"). The suit, which the plaintiffs filed in the District of Maine, takes aim at the program's requirement that a private school must be "a nonsectarian school in accordance with the First Amendment of the United States Constitution" to qualify as "approved" to receive tuition assistance payments, see Me. Stat. tit. 20-A, § 2951(2). The plaintiffs claim that this "nonsectarian" requirement infringes various of their federal constitutional rights, including their First Amendment right to the free exercise of religion, by barring them from using their SAUs' tuition assistance to send their children to religious schools.

We have twice before rejected similar federal constitutional challenges to the "nonsectarian" requirement, see Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344 (1st Cir. 2004) ; Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999), but, in the interim, the Supreme Court of the United States has decided two cases that the plaintiffs contend require us now to reverse course. Even accounting for that fresh precedent, however, we see no reason to do so. We thus affirm the District Court's grant of judgment to the Commissioner.

I.

A.

The plaintiffs are David and Amy Carson and their daughter O.C., for whom they sue as next friends; Alan and Judith Gillis and their daughter I.G., for whom they sue as next friends; and Troy and Angela Nelson and their children A.N. and R.N., for whom they sue as next friends. The plaintiffs live in SAUs that operate no public secondary school of their own and that have opted to provide tuition assistance to parents who wish to send their children to an "approved" private school.

On August 21, 2018, the plaintiffs filed a complaint in the District of Maine, alleging that § 2951(2)'s "nonsectarian" requirement -- which the complaint refers to as the "sectarian exclusion" -- violates the federal Constitution both on its face and as applied because it "denies sectarian options to tuition-eligible students and their parents." The complaint asserts claims pursuant to 42 U.S.C. § 1983 based on alleged violations of the United States Constitution under the Free Exercise, Establishment, and Freedom of Speech Clauses of the First Amendment, as they have been incorporated by the Fourteenth Amendment's Due Process Clause, and under that Amendment's Equal Protection Clause. The complaint requests declaratory and injunctive relief. When filed, it named as the defendant Robert G. Hasson, Jr., in his official capacity as Commissioner.

B.

The tuition assistance program works as follows. Parents first select the school they wish their child to attend. See Me. Stat. tit. 20-A, § 5204(4). If they select a private school, and it has been "approved" by the Department under § 5204, the parents' SAU must pay the child's tuition costs up to the legal tuition rate established in § 5806 by making the tuition payments directly to the school, see id. §§ 2951, 5204(4), 5806(2).

To be "approved" to receive such payments, a private school must meet the requirements for basic school approval -- and thus the state's compulsory school attendance requirements. Id. §§ 2901, 2951, 5001-A. To meet those requirements, the school must be either "accredited by a New England association of schools and colleges" or "approv[ed] for attendance purposes" by the Department, which depends in part on whether the school can show that it meets basic curricular requirements. Id. §§ 2901-2902. In addition, a private school must be "nonsectarian in accordance with the First Amendment" and comply with certain separate reporting and auditing requirements. Id. § 2951(2), (5).

C.

The complaint sets forth detailed allegations about the "nonsectarian" requirement's impact on the plaintiffs. Those allegations, which we summarize here, pertain to both the identity of the sectarian schools that the parents want to send their children to and the way the "nonsectarian" requirement prevents them from receiving tuition assistance to do so.

The Carsons and the Gillises send their respective children to Bangor Christian School ("BCS"), which is a private, nonprofit school in Maine. They selected BCS "because the school's worldview aligns with their sincerely held religious...