Three families who have challenged a Maine law banning the use of tax dollars to pay religious school tuition see an opening in the U.S. Supreme Court’s Tuesday decision that makes it easier for religious schools to receive public funds.
The court’s 5-4 ruling in a dispute over a Montana scholarship program for private K-12 education that makes donors eligible for up to $150 in state tax credits means that Maine’s ban on public tuition payments to religious schools is unconstitutional, according to the three families’ attorney.
Montana lawmakers created the tax credit in 2015, but the state’s highest court struck it down as a violation of the state Constitution’s ban on state aid to religious schools.
The Supreme Court, with its conservative wing in the majority, reached the opposite conclusion.
Maine does not have a program like Montana’s, but a 1981 statute requiring that school districts without high schools pay tuition to send students to nearby public or private schools bars tuition payments to religious schools. Three Maine families challenged that ban in 2018 in U.S. District Court in Bangor.
Last year, U.S. District Judge D. Brock Hornby ruled that the law did not violate the First Amendment to the U.S. Constitution, but the families appealed. That appeal is pending before the 1st U.S. Circuit Court of Appeals in Boston.
Timothy Keller, a lawyer with the Institute for Justice in Arizona, represents the Maine families as well as the women who challenged Montana’s law.
He said Tuesday that the Supreme Court ruling means Maine’s law “must be struck down.”
“The chief justice could not have been clearer: While a ‘State need not subsidize private education . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious,’” Keller said. “Maine’s town tuitioning program currently permits families who reside in towns that do not have their own public schools to receive tuition to attend the public or private school of the parents’ choice, unless the private school is religious.
“Excluding religious schools from the array of options open to Maine parents who receive the tuition benefit, simply because they are religious schools, is now clearly unconstitutional,” he said.
The lawyer will ask the appellate court in Boston to apply Tuesday’s decision to the Maine case.
Maine Attorney General Aaron Frey, whose office is defending the state Department of Education in the case, disagreed with Keller’s assessment. Maine’s law differs from the law challenged in the case Espinoza v. Montana Department of Revenue, he said.
“We remain confident that the 1st Circuit will uphold Maine’s restriction against sectarian schools receiving public funds,” he said. “At issue in Espinoza was a provision in Montana’s constitution broadly barring government aid to schools operated by religious organizations.
“Maine, on the other hand, has chosen to operate a secular public education system, and all non-sectarian schools, regardless of who operates them, are eligible for inclusion,” Frey said. “The court’s decision in Espinoza does not mean that Maine must now include sectarian schools in its public education system.”
Groups including the ACLU of Maine and National School Boards Association have submitted briefs arguing that the Maine law is constitutional.
Two families with students at Bangor Christian Schools in Bangor — David and Amy Carson of Glenburn and Alan and Judith Gillis of Orrington — along with Troy and Angela Nelson of Palermo sued the Maine Department of Education shortly before school started in August 2018. Four months later, the U.S. Department of Justice under the Trump administration filed a brief supporting the parents.
The Carsons sued on behalf of their daughter Olivia Carson, who will be a senior this fall. David Carson said that his family knew when they joined the lawsuit that it was unlikely a final decision would be made in time to benefit their family.
“We did this for the school and the families who can’t afford tuition at Bangor Christian,” he said. “More kids means a larger school and a larger school means more more activities and more opportunities for the kids.”
Bangor Christian could be a less expensive option for towns such as Glenburn that have school choice for high schoolers. In the school year that just ended, the town spent more than $1.6 million to send students to private and public high schools.
Tuition at Bangor Christian is $5,450 for the 2020-21 academic year for students in grades 6-12. By comparison, tuition at John Bapst Memorial High School for students who live in a town with school choice was just under $12,000 last school year, according to the Maine Department of Education.
If the 1st Circuit finds that the Epinoza ruling applies to Maine, it’s unclear whether the Legislature would have to repeal the 1981 ban on religious school funding or whether the appellate court’s ruling on its own would allow municipalities to make tuition payments to religious schools.