Bangor Christian School Loses Second Bid to Block “Poison Pill” Rule in Maine Town Tuitioning Program

A federal judge has declined, for a second time, to issue an injunction suspending enforcement of a Maine Human Rights Act clause that bars religious schools receiving state funding from discriminating on the basis of gender identity, sexual orientation, or religion.

Crosspoint Church, which runs Bangor Christian School, filed a lawsuit the previous year challenging a 2021 amendment to the Act. The amendment removed certain exemptions for religious schools that receive funding through Maine’s Town Tuitioning program, which was first launched in 1873. Under that program, students who live in districts without a public school may attend the public or private school their family chooses, and the sending towns pay tuition directly to the receiving schools.

In 2022, the United States Supreme Court ruled in Carson v. Makin that Maine could not require schools to be “nonsectarian” in order to be eligible for funding through the program. According to the Court, enforcing that criterion violated the First Amendment’s Free Exercise Clause.

Shortly after that decision, Maine Attorney General Aaron Frey (D) issued a statement maintaining the state’s position that religious schools should be excluded from Town Tuitioning because of their religious beliefs. He said the schools at issue provide an education “inimical to a public education,” and he cited their promotion of a single religion, their refusal to admit gay and transgender children, and their alleged discrimination in hiring teachers and staff. Frey also said he intended to explore with Governor Mills’ administration and members of the Legislature statutory amendments to address the Court’s decision and ensure that public money is not used to promote discrimination.

Crosspoint Church took legal action in early 2023 against Maine Education Commissioner Pender Makin and the Maine Human Rights Commission. The church alleged that the state had amended its law in an attempt to preemptively narrow existing religious exemptions in anticipation of the Court’s ruling. Under the 2021 amendments, the exemptions for religious institutions, which had previously applied more broadly, would apply only to schools that do not receive state funding. Religious schools that wished to take part in Town Tuitioning were therefore required to comply with anti-discrimination requirements concerning religion, gender identity, and sexual orientation.

The amended law also added “religious neutrality” language for schools that accept state funds, stating that “to the extent that an educational institution permits religious expression, it cannot discriminate between religions in so doing.” It included a “religious nondiscrimination requirement” barring discrimination on the basis of religion “in any academic, extracurricular, research, occupational training or other program or activity.” The Act further prohibits religious schools that accept state funds from discriminating on the basis of sexual orientation or gender identity, regardless of whether doing so would violate their faith.

In a March 2023 complaint, Crosspoint Church argued that the provision deters religious schools from participating in the program. “This ‘poison pill’ effectively deters religious schools from participating and thereby perpetuates the religious discrimination at the heart of the sectarian exclusion,” the church said.

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