Maine Ban on Religious-School Funding May Survive Appeal

BOSTON (CN) – Families challenging a Maine law that denies public funding for religious schools faced a highly skeptical audience today at the First Circuit.

The families claim that a 2017 Supreme Court decision changed the rules in this area and the state can no longer discriminate against religious schools.

But the argument quickly faced pushback from U.S. Circuit Judge Bruce Selya. “I don’t think so,” the Reagan appointee said flatly.

The point was one echoed by U.S. Circuit Judge David Barron, who was appointed by President Obama.

“Nothing in [the 2017 decision] as I read it creates a constitutional problem,” Barron agreed.

Because roughly half the states have voucher programs of some sort, Leslie Davis Hiner, vice president of the advocacy group EdChoice, noted that a ruling in favor of the families could potentially have national implications.

The U.S. Department of Justice intervened in the case on the side of the families, and Vivek Suri of Jones Day in Washington, D.C., participated in the argument on the government’s behalf.

Maine is a rural state and the majority of its school districts don’t have their own high school. As a result, the state allows parents to seek tuition reimbursement after enrolling their children in the nearby public or private school of their choice, so long as that school is not religious.

The First Circuit upheld this arrangement in a 2004 decision authored by Selya, but the scheme came under fresh fire after the Supreme Court sided with a Missouri church seeking public grant money to resurface a playground.

Timothy Keller, an attorney for the families with the Institute for Justice in Tempe, Ariz., faced pushback from the First Circuit, however, as soon as he started speaking.

“We can’t overturn” our 2004 decision unless the Supreme Court clearly said we have to, Barron insisted, going on to describe the Supreme Court’s 2017 decision as very limited.

The judges insisted that the benefit in the Maine case is a secular education, which the state has a right to promote over religious indoctrination.

Keller and Suri’s fallback position was that the state had overreached and had denied reimbursement to a school with an Episcopalian background even though its curriculum was entirely secular.

This example failed to impress retired U.S. Supreme Court Justice David Souter, who participated in the panel. Souter said this didn’t matter because the state’s position was that it denied tuition only to schools with religious requirements such as classes, prayers or chapel attendance — which he called “religion plus.”

“We can decide the case based on that standard,” he added.

Suri complained that a school with a secular curriculum could be shut out based simply on having a prayer to start the day. To this, Barron asked: “Why can’t the state just decide not to fund that?”

Maine Assistant Attorney General Sarah Forster argued that the judges could also throw out the case on the grounds that the families didn’t have standing to complain inasmuch as the tuition money went to the schools, not the parents, and no schools were participating in the suit.

She found a receptive audience in Selya. “I’m seriously concerned about whether we have standing here,” he said.

But Barron strongly disagreed and spent almost all of Forster’s argument time challenging her on the standing issue.

“Under your logic,” he told her at one point, if Maine refused to pay tuition for students who chose to go to schools with a lot of black children, the families wouldn’t be allowed to complain in court if the schools didn’t want to get involved in a lawsuit.

Forster stood her ground, however, agreeing that was the state’s position.

The U.S. Supreme Court will hear arguments on Jan. 22 in a somewhat similar case challenging a Montana law that provides tax credits for donations to scholarship organizations but excludes religious schools.

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