John Bapst Memorial High School in Bangor is shown in March 2020. Credit: Linda Coan O'Kresik / BDN

The U.S. Supreme Court’s upcoming look at a Maine law that bars the use of public tuition funds at religious schools will test a 40-year-old policy that came from an effort to simply formalize educational practices in state law, and not change them.

Also intertwined with the history of that policy is a 1980 decision by John Bapst Catholic High School in Bangor to close, then reopen in the fall as a nonsectarian school.

The Supreme Court on Friday said it would hear a case that families from Glenburn and Palermo brought against the state in 2018 challenging the law that bars the use of public tuition funds at religious schools.

Both families are from towns without designated public high schools, so they’re entitled to public tuition dollars that would enable them to attend a public or private school of their choice in another community as long as it’s not a religious school. Through their lawsuit, the families sought tuition funds for their children to attend Bangor Christian Schools and Temple Academy in Waterville. Federal judges at the district and appellate court levels found the Maine law constitutional.

The statute the families are challenging passed as part of a much larger recodification of Maine education laws in 1982. Legislative debate at the time shows that lawmakers didn’t intend to change any policies as part of the process. Rather, they sought to codify them in state law.

However, the addition of the religious schools statute did represent a policy change. A Republican senator from Bangor, Howard Trotsky, had sought clarity on the religious funding issue while working on codifying state education laws, according to a 2006 editorial in the New York Sun. In response, Attorney General Richard Cohen, a Republican, said in a January 1980 opinion that public funding for religious schools violated the First Amendment.

That policy change led schools such as John Bapst Catholic High School in Bangor to close in June 1980 and reopen as a nonsectarian school that fall. Today, it is John Bapst Memorial High School.

Michael Bindas, lead attorney for the families challenging the Maine law, called Cohen’s opinion “flawed” for reasons that have become clear in subsequent years and in light of more federal court opinions.

“It’s now plain as day that the original attorney general opinion was wrong,” said Bindas, who is affiliated with the group Institute for Justice that has defended the inclusion of religious schools in other school choice programs. “Nevertheless, the law the Legislature enacted in response to that opinion is still in place.”

A spokesperson for Maine Attorney General Aaron Frey pointed to previous statements on the case by Frey in response to a request for comment on Wednesday. Last week, Frey said he was confident the Supreme Court would recognize “that nothing in the Constitution requires Maine to include religious schools in its public education system.”

The state excludes religious schools from its tuition program “because the education they provide is not equivalent to a public education,” Frey said. “Religious schools can and do advance their own religion to the exclusion of all others, discriminate in both the teachers they employ and the students they admit, and teach religious views inimical to what is taught in public schools.”

The Maine Association of Christian Schools opposed the 1982 legislation because its members were fighting any efforts to be subject to state control, Trotsky said during Maine Senate debate on March 31, 1982.

The Maine Teachers Association and Maine School Management Association were also involved in the crafting of the greater education bill, according to legislative discussion from the time. It passed the Senate 21-10 on April 1, 1982, and the House 112-28 four days later. It was signed into law by Maine Gov. Joseph E. Brennan.

In barring sectarian schools, the statute explicitly references the First Amendment to the U.S. Constitution, which prohibits state support for a specific religion in the Establishment Clause.

Efforts to prohibit government funding of religious schools began in the late 19th century. Maine congressman James G. Blaine advocated for a constitutional amendment banning such funding.

Though the Blaine Amendment never became a constitutional amendment, numerous states passed amendments to their state constitutions banning such funding, though opposition to such schools at the time was largely rooted in anti-Catholicism rather than a desire for secular education.

Maine never added such an amendment to its constitution and it remains one of only 13 states without one today.

This is not the first legal challenge to the Maine law.

The U.S. Supreme Court refused to hear a challenge to the law in November 2006, in the case of Julia Anderson v. Town of Durham. The Cumberland County Superior Court and Maine supreme court had ruled that Maine’s decision not to fund religious schools was constitutional under the First Amendment.