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In the last year, the highest courts in New York and Maine issued important rulings in school finance cases. The New York court refused to require the state to spend $5.63 billion in additional operating funds for New York City public schools, but upheld the state’s proposed $1.93 billion increase — itself required by an earlier state supreme court decision. The Maine court upheld a statute that excluded sectarian high schools from eligibility for public funding in districts where there was no public high school.

New York

In Campaign For Fiscal Equity Inc. v. New York (CFE III), the New York Court of Appeals, with Judge Pigott writing for the majority, “declare[d] that the constitutionally required funding for the New York City School District includes additional operating funds in the amount of $ 1.93 billion.”1 The court thus rejected the plaintiff ’s contention that that amount was not a reasonable estimate of the amount required to fulfill New York’s constitutional guarantee of a sound basic education for children.

The New York state constitution requires the legislature to “provide for the maintenance and support of a system of free common schools, wherein all the children of this state may be educated.”2 The New York state courts have interpreted this as a guarantee of a “sound basic education.”3 The Campaign For Fiscal Equity (CFE) filed suit, arguing that the New York City public schools had not fulfilled this guarantee and that school financing was to blame. In CFE I, the court of appeals preserved their claims from a motion to dismiss4 and in CFE II held that they had established a causal link between the existing school finance system and the failure of the city’s public schools to prepare children “to function productively as civic participants.”5

The court in CFE II directed the state to reform the school finance system and to ensure accountability by July 30, 2004.6 To conform to this mandate, the Governor created the Zarb Commission, which assessed districts’ educational performance and spending to determine the location and size of “spending gaps.” The Commission calculated that the spending gap for the city’s public schools’ operating budget was $1.93 billion.7 Although the Governor and the legislature endorsed this figure and the process used to determine it, a panel of referees appointed by the supreme court decided that CFE’s methodology, which yielded a spending gap of $5.63 billion, was better. 

In CFE III, the court of appeals affirmed the reasonableness of a $1.93 billion increase in operations spending and vacated the portion of the lower court’s directive calling for capital improvements for the school system. (Legislation exceeding the supreme court’s mandate for capital improvements was passed in the interim.) The majority justified its opinion by emphasizing the importance of judicial deference to the political branches. The judiciary, it observed, has limited access to social and economic facts and therefore must balance the defense of constitutional rights with micromanagement of fiscal matters and interference with the balance of power between the branches of government.8 Despite the interventionist character of CTE I and CTE II, it held the supreme court should have assessed whether the Commission’s proposals were “reasonable” or “rationally defensible,” not established its own panel to create new substantive solutions.9

Judge Rosenblatt concurred that the supreme court should have deferred to the other branches because “the State budget plan had already calculated the amount in a way that, as a matter of law, was not arbitrary or irrational.”10 He asserted, however, that although the state’s calculations might be reasonable they did not necessarily yield the “proper” amount to provide the city’s public schools.11 This inclination to allow for the judiciary to weigh in on the correctness, not mere legality, of state policy, undercut the majority’s emphasis on deference.

Chief Judge Kaye concurred in part and dissented in part; Judge Ciparik joined her opinion. The dissent argued that the majority erred by deferring too much to the executive and legislative branches, and that the Commission’s calculations were irrational. She contended that when the legislative and executive branches do not act together, as in this circumstance where no appropriations bill had been enacted, the determinations of these branches did not merit special weight.12 Additionally, Chief Judge Kaye critiqued the weighting of variables used in the Commission’s calculations. She concurred with the majority’s assessment with respect to capital improvements or accountability procedures.13

Maine

While the New York Court of Appeals attempted to define appropriate judicial deference to the political branches, Maine’s highest court struggled with how to balance the contradictory demands of the Establishment and Free Exercise Clauses. In Anderson v. Town of Durham, the Maine Supreme Judicial Court ruled that the state’s tuition payment statute, which prohibits town school districts that do not operate a public high school from providing public funds for students to attend private sectarian schools, is constitutional.14 The court held that the statute did not “infringe upon the fundamental right to free exercise of religion in a constitutionally significant manner” and did not violate the Fourteenth Amendment’s guarantee of equal protection.15

The plaintiffs, parents who sent their children to religious high schools ineligible for public funding, sued the defendant towns for a declaratory judgment that the tuition payment statute violates the Establishment, Free Exercise, and Equal Protection Clauses of the First and Fourteenth Amendments; an injunction forbidding the towns from enforcing the tuition payment statute; and reimbursement for tuition paid to the religious schools, attorney fees, and costs. The parents also sought to hold the towns liable under § 1983 on the ground that the towns had deprived plaintiff s of their constitutional rights under color of state law.16

Maine law permits school districts to build their own high schools or to contract with another school district or a private school that meets the state’s school approval criteria.17 If the district does not build its own school,18 it pays the contract high school a set amount, based on the anticipated cost of public high school tuition.19 Before 1981, sectarian private schools were eligible for approval, but the statute was changed to exclude them in response to concern that this use of public funds violated the Establishment Clause.20

Maine’s highest court21 and the First Circuit22 had previously upheld the tuition payment statute against federal constitutional challenges. In 2002, however, the U.S. Supreme Court held in Zelman v. Simmons-Harris that using publicly-funded school vouchers to pay tuition at sectarian schools did not violate the Establishment Clause.23 This, plaintiffs argued, meant that the state could not discriminate against religious schools by excluding them from Maine’s tuition payment program. Maine Supreme Judicial Court Justice Alexander, writing for a majority, nonetheless affirmed that Maine’s program was constitutional.

The majority based its approval of the statute on the concept of “play between the joints” of the Establishment and Free Exercise Clauses discussed in Locke v. Davey.24 That case held that Washington State’s exclusion of students pursuing theology degrees from eligibility for a state scholarship did not violate the Free Exercise Clause. Like the Washington program in Locke, Justice Alexander stated, the Maine tuition payment statute did not violate the Free Exercise Clause because the plaintiffs were not being punished for conduct required by their religious beliefs, required to perform an act proscribed by their religion, or pressured to modify their beliefs.25 The majority also contended that, although Zelman’s holding meant that Maine “could hypothetically extend tuition funding to sectarian schools without violating the Establishment Clause,” the state was not thereby required to do so; like Washington, Maine could choose not to fund religious education.26

Since the majority found that the statute did not violate plaintiffs’ rights under the Establishment or Free Exercise Clauses, it declined to apply strict scrutiny to the statute in assessing plaintiffs’ Equal Protection claim.27 The majority rejected the idea that the statute must be considered only in light of the known rationale for its passage. Despite evidence that the legislature enacted the tuition payment statute in response to a state attorney general’s report on the effect of the U.S. Supreme Court’s Establishment Clause decisions in the 1970s and early 1980s,28 the majority declared that it was not “bound by the justification proff ered by the State in support of the statute... or offered in support of the legislation in 1981 [because the new] justifications for the statute asserted by the State [were] not inconsistent with or contradictory to prior stated goals.”29 The majority noted in particular that the payment mechanism, which differed from the vouchers at issue in Zelman, involved a direct payment from the public fisc to a sectarian school, and that acceptance of the payment made the sectarian schools subject to state regulation.30 Avoiding the potential for state entanglement with religion posed by these circumstances, it held, constituted a rational basis for upholding the tuition payment statute.31

Two justices concurred that the statute did not violate the First or Fourteenth Amendments but asserted that the court should have addressed plaintiffs’ contention that the school districts could be found liable for failing to disobey the tuition payment statute. They did not express an opinion as to the merit of this contention, but argued that the strong potential for recurrence and the great public interest involved should exempt it from the mootness doctrine.

Justice Clifford dissented, asserting that the majority had read Locke too broadly, erred as to the resolution of the plaintiffs’ First Amendment claim, and therefore applied the wrong test to the Fourteenth Amendment claim.32 The tuition payment statute, he said, was not neutral toward religion; it excluded some schools from the program on the basis of religion through “discriminatory language.”33 And though the post-secondary theological education in Locke was “an essentially religious endeavor,” the education provided by sectarian schools in Maine that complied with state approval requirements was not, he contended.34 He argued that the lack of correspondence between the two programs meant that Locke did not apply.35

Justice Clifford’s dissent also contrasted the history of opposition to state support for the ministry in Washington State with the pre-1980 Maine law permitting the use of public funds to pay tuition at sectarian high schools. Because he would have found that the statute violated plaintiffs’ right to free exercise, Justice Clifford would have applied strict scrutiny to the state’s rationale for the law. And because the actual rationale was based on a jurisprudence that has since been overturned or reconstructed, it would have failed. However, he also argued that the law should have failed the majority’s application of the rational basis test for the same reason. Finally, Justice Clifford stated that the court should have rejected the school district’s “new, after-the-fact reasons to justify the [statute’s] discriminatory language.”36

Unlike the New York Court of Appeals’s decision in CTE III, the Maine Supreme Judicial Court’s decision in Anderson does not preclude further litigation, as only the U.S. Supreme Court can definitively outline how much “play between the joints” of the Religion Clauses there should be and at what point avoidance of establishment shades into interference with free exercise.

* Amber Taylor is a member of the Washington, D.C. chapter of the Federalist Society and a graduate of Harvard Law School.

 

Endnotes

1 8 N.Y.3d 14, 27 (2006) (CFE III).

2 N.Y. Const. art XI §1.

3 Bd. of Educ., Levittown Union Free Sch. Dist. v Nyquist, 57 N.Y.2d 27 (1982).

4 Campaign for Fiscal Equity v. State of New York, 86 N.Y.2d 307 (1995) (CFE I).

5 Campaign for Fiscal Equity v. State of New York, 100 N.Y.2d 893, 908 (2003) (CFE II).

6 Id. at 932.

7 CFE III, 8 N.Y.3d at 24.

8 Id. at 28.

9 Id. at 29-31.

10 Id. at 33.

11 Id.

12 Id. at 34-35.

13 Id. at 38-42.

14 895 A.2d 944 (Me. 2006), 2006 Me. 39, 2006 Me. LEXIS 39.

15 Id. at 39.

16 Id. at 12-13.

17 20-A M.R.S. §§ 2901, 2902 (2005). Approved private schools must either be accredited by the New England Association of Colleges and Secondary Schools or comply with state requirements for basic instruction, curriculum, teacher certification, length of the school day, and student-teacher ratios. They must also be incorporated under the laws of Maine or the United States, releasestudent records to another school upon request, comply with auditing requirements pursuant to § 2952 and 2953, and follow any regulations established by the commissioner under 20-A M.R.S. § 2954. Approved private schools with enrollment of at least 60 percent publicly-funded students must participate in state academic assessments. 20-A M.R.S. § 2951 (2005).

18 20-A M.R.S. § 2701 (2005).

19 20-A M.R.S. §§ 5805, 5806, 5808 (2005).

20 20-A M.R.S. § 2951(2) (2005).

21 Bagley v. Raymond Sch. Dep’t, 728 A.2d 127, (Me. 1999).

22 Strout v. Albanese, 178 F.3d 57, 66 (1st Cir. 1999); Eulitt v. Me. Dep’t of Educ., 386 F.3d 344 (1st Cir. 2004).

23 536 U.S. 639 (2002).

24 540 U.S. 712, 718 (2004).

25 Id.

26 Anderson, 2006 Me. LEXIS at 39.

27 Id. at 40-41.

28 Specifically, the majority cited Aguilar v. Felton, 473 U.S. 402 (1985) (holding that the Establishment Clause prohibited sending public school teachers into private, religious schools to provide remedial education to disadvantaged children); Wolman v. Walter, 433 U.S. 229 (1977) (holding that provision of instructional materials and transportation services to religious schools is not permitted; therapeutic services could be provided to religious school students off -site; funding for secular textbooks, testing, and diagnostic services upheld); Meek v. Pittenger, 421 U.S. 349 (1975) (striking down in part a Pennsylvania law that provided loans of educational materials to religious schools); Comm. for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756 (1973) (invalidating New York tax laws that provided direct money grants to qualifying non-public schools for maintenance and repair of facilities and equipment); Lemon v. Kurtzman, 403 U.S. 602 (1971) (invalidating programs that provided salary supplements to teachers of secular subjects in religious schools).

29 Id.

30 Id. at 44.

31 Id.

32 Id. at 52.

33 Id. at 55.

34 See supra note 19.

35 Id. at 53.

36 Id. at 57.

Note from the Editor: The Federalist Society takes no positions on particular legal and public policy matters. Any expressions of opinion are those of the author. We welcome responses to the views presented here. To join the debate, please email us at [email protected].