BOSTON (CN) — Maine can provide tuition reimbursement to parents who send their children to private schools but not to parents who send their children to religious schools, the First Circuit held Thursday.
The 63-page ruling could have national implications inasmuch as roughly half the states have tuition voucher programs of some sort, said Leslie Davis Hiner, vice president of the advocacy group EdChoice, in an interview.
And the issue isn’t going away quickly. “We will immediately appeal to the U.S. Supreme Court,” said the plaintiffs’ attorney, Tim Keller of the Institute for Justice, a libertarian public-interest law firm in Virginia.
“Today’s decision is disappointing for families across Maine, but we are confident the Supreme Court will ultimately put a stop to it,” Keller said in a statement.
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 apply for tuition reimbursement after enrolling their children in the nearby public or private school of their choice — so long as the school isn’t religious.
Three families who wanted to send their children to Christian schools filed a lawsuit claiming that Maine was infringing on their free exercise of religion.
The First Circuit upheld Maine’s program in 2004, but the current lawsuit was prompted by two recent U.S. Supreme Court decisions. In 2017, the Supreme Court ruled that a Missouri subsidy for resurfacing playgrounds at preschool and daycare facilities couldn’t be denied to a church-run preschool.
And in June of this year, the Supreme Court said a Montana program of tax credits for people who donate to private-school scholarships couldn’t exclude religious schools.
These new rulings meant that Maine’s program is now illegal, the families argued.
But U.S. Circuit Judge David Barron, an Obama appointee, said that there was a big difference between religious status and religious activities. The Missouri and Montana programs denied subsidies to schools simply because of their status as being owned by a church — regardless of whether the education was religious in nature, Barron said.
By contrast, the Maine program denies subsidies only if the school’s educational program is explicitly religious.
The state’s “focus is on what the school teaches through its curriculum and related activities, and how the material is presented,” Barron explained.
“Sectarian schools are denied funds not because of who they are but because of what they would do with the money — use it to further the religious purposes of inculcation and proselytization."
Of the two schools in this case, one “has a mission of ‘instilling a biblical worldview’ in its students, with religious instruction ‘completely intertwined’ in its curriculum and the Bible as its ‘final authority in all matters,’” Barron noted.
The other “provides a ‘biblically-integrated education’ and has an educational philosophy ‘based on a thoroughly Christian and biblical worldview,’” Barron said. And both schools refuse to hire teachers who are homosexual.
Barron noted that the purpose of the Maine program is to ensure that students in districts without a public high school get an education that is “roughly equivalent to the education they would receive in public schools,” which would be secular in character.
Although the families claim they’re being penalized for being religious, “nothing … suggests that the government penalizes a fundamental right simply because it declines to subsidize it,” Barron observed.
The ruling was joined by U.S. Circuit Judge Bruce Selya, a Reagan appointee, and former Supreme Court Justice David Souter.
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