Bowen testimony in support of religious schools bill

The Maine Legislature’s Education Committee held a public hearing March 15 on legislation that removes language in Maine statute that prohibits public tuition dollars from going to private religious schools that would otherwise be approved for the receipt of such funding.

Education Commissioner Stephen Bowen delivered the following testimony supporting LD 1866, An Act to Remove Inequity in Student Access to Certain Schools.

Testimony of Stephen Bowen, Commissioner of Education

Senator Langley, Representative Richardson, and Members of the Joint Standing Committee on Education and Cultural Affairs:

My name is Stephen Bowen, Commissioner of the Department of Education, and I am here today representing the Department of Education and the Governor in support of LD 1866, An Act To Remove Inequity in Student Access to Certain Schools.

I will admit up front that I have not read every bill that has come before you this legislative session, but I am prepared to assert nonetheless that the bill before you is the shortest bill you have considered to date.

In a single sentence, the bill removes about a dozen words from Title 20-A, Section 2951, the section of state statute that governs the approval of private schools to receive public tuition dollars.  As currently written, this section of statute allows a private school to receive public funds under the following conditions:

  • It meets the requirements for basic school approval.
  • It is a nonsectarian school in accordance with the First Amendment of the United States Constitution.
  • It is incorporated under the laws of the State of Maine or of the United States.
  • It complies with statutory reporting and auditing requirements.
  • If the school enrolls 60% or more publicly funded students, it participates in the statewide assessment program to measure and evaluate the academic achievements of students.
  • It complies with student records transfer requirements.

The bill before you would strike out the requirement in the second bullet that schools be non-sectarian, but leaves in place all other requirements of this section.  If enacted, this change would mean that sectarian schools that meet every other legal requirement for the receipt of public tuition could receive public funding, effectively reversing a statutory change made in 1981 which outlawed such funding.

Today, there are 28 private elementary and high schools in Maine that have been approved for the receipt of public tuition dollars, providing students and families with additional educational options.  Passage of this bill would mean still more publicly-funded options for students and families, assuming that sectarian schools avail themselves of the opportunity to receive public funds and assuming that they meet all the other criteria in the law for receipt of public funds.

Needless to say, this bill is not without controversy.

There is, for example, the question of the constitutionality of the bill.  We believe that the U.S. Supreme Court’s approval of public funding for religious schools in the 2002 Zelman case demonstrates that school funding laws in which parents direct the actions of the government entity—in other words, that it is the parent, not the government agency, that directs the public funding to the religious school—do not violate the establishment clause of the Constitution.  In the type of funding model before you, the government is not establishing anything.  It is the family that makes the decision with regard to where the student goes, the funding follows the student, and this has been held by the Supreme Court to be constitutional.

There is also the question of whether this provision, because it expands the number of educational options available to students and families, is somehow damaging to the cause of public education more broadly, because it takes money from existing public schools and directs it to private religious schools instead.

To my way of thinking, this goes to the much broader policy question this Committee needs to answer, which is:  what are the educational options for students that are we prepared to support with public funding?

The answer to that question stems from how we define “public education”.  At some point in the past, we made the decision as a people that we would provide all children with a free public education.  But we also made the decision at some point—and this was, in my mind, a separate decision—that the way we would provide for that public education would be through a network of public schools that were built, owned and operated by public entities.  In the minds of many, this network of public schools ARE public education. They are one and the same.

In Maine, we have a slightly different tradition, which is that we have relied for years on private schools to do much of the educating of publicly-funded students.  The Town Academies, for instance, have endured for generations, providing, I would argue, a public education in a private school setting.  That is certainly what I received as a student at George Stevens Academy in Blue Hill.

Until the statutory change that was made in 1981, private religious schools in Maine provided that public education as well, doing so in a private, religious school setting.  Was this not, when it was allowed, a form of public education, just as public funding for non-religious private schools in Maine today constitutes a form of public education?

I bring these questions into the debate on this bill because to our way of thinking, the goal of the public education system should be to provide students access to the educational opportunities that will best meet their learning needs, regardless of the setting.  For the vast majority of students, now and for the foreseeable future, those opportunities will continue to be found in their nearby public schools.  But for many students and their families, an educational setting like that found in a private religious school is the best choice for them, and, we would argue, that education should be publicly supported.

If we are serious about building a public education system that meets the needs of all students, we believe that private religious schools—and only those that meet every other requirement of state law for the receipt of public funding—should be a part of the universe of educational options that we provide, at public expense, to the students of Maine.

It is for these reasons that the Department is testifying in support of LD 1866, An Act To Remove Inequity in Student Access to Certain Schools. I am happy to take any questions the Committee may have, and I will be available for work sessions on this bill.

2 responses to “Bowen testimony in support of religious schools bill

  1. Kenneth Coville

    I support the proposed repeal of the outright ban on use of public funds for Sectarian schools. The original rationale for the law was a sincere and reasonable judgement that public funding of sectarian schools would violate the first amendment of the U.S. constitution. As the commissioner points out subsequent cases have shown that this is not always so. Since the original rationale for the law has chaned
    Where I take issue with the Commissioners comments is where he states.
    “At some point in the past, we made the decision as a people that we would provide all children with a free public education. But we also made the decision at some point—and this was, in my mind, a separate decision—that the way we would provide for that public education would be through a network of public schools ….”
    This is where the Commissioner is simply factually wrong. The decision in Maine that state mandated publicly funded education would be provided through public schools was made at the very moment that Maine became a state. This is demonstrated by a quick review of the Constitution of Maine which states in Article VIII Education. “…the Legislature are authorized, and it shall be their duty to require, the several towns to make suitable provision, at their own expense, for the support and maintenance of public schools;” As can be seen at the very birth of our state the constitution established that the legislatures authority was limited to requiring the towns to provide public funding to “public schools”. While the towns can ,(and have as demonstrated by the commissioners own attendance at George Stevens academy), elect locally to provide for education through private schools, the legislature has no authority under the Maine constitution to compel them to do so.
    This is a critical issue in considering any legislation that would promote school choice requiring local funding that includes private schools (sectarian or non sectarian). To be constitutional any such legislation would have to leave the decision (as it is now) to elect the private school option up to the citizens of the towns.

  2. Excellent…agree totally…the law never should have been changed in ’81!!

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