The American Civil Liberties Union of Maine cannot intervene in a federal lawsuit over school funding, a judge has decided.

Zachary Heiden, legal director of the ACLU of Maine, said, “Maine’s state and federal courts have consistently held that Maine’s law is constitutional because taxpayers cannot be required to pay to teach children how to pray.”

In August, three Maine families challenged a decades-old statute by filing the complaint against the state Department of Education in U.S. District Court in Bangor. Local school administrative units that do not have their own secondary schools can pay a certain amount in tuition for students to attend outside public or private schools. But under Maine law that money cannot be used at religious schools, a policy that the families’ lawsuit calls discriminatory and unconstitutional.

The plaintiffs are represented by two national groups that advocate for religious liberty and school choice.

In October, the national and state American Civil Liberties Union, along with Americans United for Separation of Church and State, filed a motion to intervene in that case. They represent three people, including two retired teachers, who live in the towns mentioned in the complaint. The groups wanted to argue that it is unconstitutional to force states to fund religious education.

U.S. District Judge D. Brock Hornby denied that motion to intervene Thursday, but he will allow the civil liberties groups to file amicus briefs outlining their positions on the case. The judge wrote that he is confident the Maine Attorney General’s Office has the ability and resources to defend the statute on its own, and he worried about the possible delay should other parties be allowed to join the case.

“At the end of the day, despite good intentions, there is a risk of added complexity and delay in allowing intervention, and no obvious benefit,” Hornby wrote in his order.


A spokeswoman said the ACLU of Maine does not plan to challenge the order.

“Maine’s state and federal courts have consistently held that Maine’s law is constitutional because taxpayers cannot be required to pay to teach children how to pray,” legal director Zachary Heiden said. “We hope the court will do so again, and we look forward to filing a friend-of-the-court brief in this case.”

The Virginia-based Institute for Justice is one of the groups representing the plaintiffs.

Angela and Troy Nelson posed in August with their children, Royce and Alicia, at their home in Palermo, a town that doesn’t have a public high school. The Nelsons are plaintiffs in the case seeking public funding for religious-school tuition.

“The parents who filed this lawsuit opposed the ACLU’s intervention as parties to the litigation and they are pleased that the court denied the ACLU’s request,” senior attorney Tim Keller said.

More than 30 states have constitutional amendments that prohibit state funding of religious organizations, including schools. Though Maine is not one of them, it passed a law in 1981 that bars public funding for sectarian schools. Legislative efforts to expand school choice and give taxpayer money to religious schools have failed to gain traction in recent years.

This is the third time the Institute for Justice has filed a legal challenge in Maine over this issue. The law firm took similar cases in 1997 and 2002, losing both times. The Maine affiliate of the ACLU was granted intervenor status in both of those lawsuits, the motion said.


The Institute for Justice saw an opening to try again after a U.S. Supreme Court ruling last year. In that case, Trinity Lutheran Church in Missouri was barred from participating in a state program that reimburses the cost of rubberizing playground surfaces.

The nation’s highest court ultimately decided the church should be eligible for that public funding. So the Institute for Justice joined with the Texas-based First Liberty Institute to represent the three Maine families, who live in Palermo, Glenburn and Orrington.

If the lawsuit is successful, it would not affect districts that contract to send all their students to outside high schools as a group. It is not clear how many students live in districts that reimburse their parents for tuition at the high school of their choice. Keller said the Institute for Justice has identified a handful of districts with that policy, mostly in Penobscot, Kennebec and Lincoln counties.

Megan Gray can be contacted at 791-6327 or at:

Twitter: mainemegan

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