Appeals court upholds Maine's ban on religious schools in school choice program

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A federal appeals court has ruled against Maine parents challenging a state law that excludes religious schools from the state’s high school tuition program despite a recent ruling by the U.S. Supreme Court that struck down similar restrictions in Montana.

The U.S. 1st Circuit Court of Appeals on Thursday upheld a lower court ruling against three families who filed a lawsuit against the commissioner of the Maine Department of Education over a rule that bans the use of tax dollars to pay for students’ tuition to attend religious schools. 

The families are represented by the Institute for Justice and plan to appeal the ruling to the U.S. Supreme Court, according to a statement released by the nonprofit legal group. 

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According to the institute, Maine is home to the country’s second-oldest school choice program. 

Since 1873, the state’s “tuitioning” system has paid for children in towns that are too small to maintain public schools to attend the private or public schools of their choosing. Until 1980, families were allowed to send their children to religious private schools as part of the program. 

“Today’s decision allows the state of Maine to continue discriminating against families and students seeking to attend religious schools and we will immediately appeal to the U.S. Supreme Court,” IJ Senior Attorney Timothy D. Keller said in a statement.  

Keller cited the Supreme Court’s decision in June in the case of Espinoza v. Montana. The nation’s high court ruled 5-4 that religious schools can qualify for a state tax credit program even though the state constitution banned public aid from going to religious institutions. 

The ruling found that the Montana Constitution’s “no-aid” provision to its tuition assistance program discriminated against religious schools and violated the U.S. Constitution's Free Exercise Clause. 

“The Supreme Court’s recent decision in Espinoza prohibits religious discrimination in educational choice programs,” Keller added. “Today’s decision is disappointing for families across Maine, but we are confident the Supreme Court will ultimately put a stop to it.”

The three sets of Maine parents sued the state in 2018 over a provision in the tuition program that states that a private school must be "a nonsectarian school in accordance with the First Amendment of the United States Constitution.” Such a provision relies on the Establishment Clause of the First Amendment, which prohibits governments from making any law “respecting an establishment of religion.” 

The Maine parents contend that the “nonsectarian” requirement infringes on their constitutional rights, such as the First Amendment right to the free exercise of religion because it bars them from using state funds to send their children to religious schools. 

The 1st Circuit has twice before rejected similar arguments against the state’s “nonsectarian” requirement. 

“[B]ut, in the interim, the Supreme Court of the United States has decided two cases that the plaintiffs contend require us now to reverse course,” the panel’s ruling, authored by Judge David Barron, an Obama appointee, reads. 

“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.”

In 2017, the Supreme Court set a similar precedent in the 2017 ruling in Trinity Lutheran v. Comer, where it ruled 7-2 to strike down a Missouri constitutional provision that barred the "public treasury" from funding "aid of any church, section or denomination of religion” even if the funding is meant for secular purposes. 

In the ruling, the Supreme Court concluded that Trinity Lutheran Church of Columbia can’t be barred from a state aid program to help preschool and daycare facilities resurface their playgrounds. 

The plaintiffs in the Maine lawsuit argued that the Trinity Lutheran decision "radically changed the constitutional landscape of First Amendment free exercise challenges."

However, the state argues that the Maine school aid program differs from the ones at issue in Espinoza and Trinity Lutheran

"Maine's tuition program is not [a] 'voucher' or 'school choice' program where parents are given the opportunity to select a school other than the public school that their student would otherwise attend,” Commissioner Pender Makin was quoted as arguing in the 1st Circuit ruling. 

Barron added that Maine “uses the tuition benefit to ‘ensur[e]’ that the state-paid-for education at private schools in those districts is ‘roughly equivalent to the education [students] would otherwise attend." 

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