Three families demanding that the state pay tuition for religious schools are taking their appeal to a U.S. Supreme Court that looks much different than when the lawsuit was filed more than two years ago.

The conservative shift of the U.S. Supreme Court and a ruling in a Montana case make attorneys for the Maine families more optimistic that they’ll prevail in changing the state’s stance, which dates to 1980. The Supreme Court will decide whether to hear the appeal, filed Thursday.

“The court should grant this case and resolve this issue once and for all,” said the families’ attorney, Michael Bindas, from the Institute for Justice.

The Maine Department of Education currently allows families who reside in towns without their own public schools to receive tuition to attend a public or private school of their choice. But religious schools are excluded.

There have been several lawsuits over the years, but the courts always have sided with the state, which contends using taxpayer dollars to fund religious education violates the separation of church and state.

The latest lawsuit targeting Maine’s tuition program was filed in August 2018 after the Supreme Court held that a Missouri program was wrong in denying a grant to a religious school for playground resurfacing.


The makeup of the U.S. Supreme Court has changed since then. Former President Trump’s nominations of Brett Kavanaugh and Amy Coney Barrett caused a conservative shift in the court.

The Institute for Justice contends the Maine case is bolstered by a lawsuit its attorneys brought in Montana. In that case, the U.S. Supreme Court ruled last year that states must give religious schools the same access to public funding that other private schools receive, preserving a Montana scholarship program that had largely benefited students at religious institutions.

Bindas said the Supreme Court has “shown a commitment to providing robust protection for religious liberty in recent years” by ensuring that parents who believe a religious education is best for their children are not penalized for their choice.

“We are optimistic that the court will act with that same commitment here, so that all parents can access the schools that are best for their kids, whether religious or non-religious,” he said Friday.

The current Maine lawsuit was rejected by the 1st U.S. Circuit of Appeals in Boston in October after the ruling in the Montana case. There’s no timetable for the Supreme Court to decide whether to consider the appeal.

Maine Attorney General Aaron Frey said Friday the appeals court was correct in determining that the Maine and Montana cases are different.


“Maine is simply declining to pay for religious instruction that would be unavailable in any public school. Maine’s program is unlike the ‘no aid’ clause in the Montana Constitution at issue in the Supreme Court’s (decision in Montana) or any prior ‘school choice’ program that has been subject to review,” Frey said.

The Maine case has broad implications. Lawsuits are pending over similar programs in New Hampshire and Vermont.

Maine and New Hampshire have similar programs for students who live in communities without schools to attend public or non-religious private schools of their choice.

Vermont is facing at least two lawsuits over a voucher program that allows students in communities that don’t have schools.


Associated Press writer Lisa Rathke in Montpelier, Vermont, contributed to this story.

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