The U.S. Supreme Court will take up a challenge to a Maine law that bars students from using public funding for tuition at religious schools.

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 Maine law does not allow for that money to be used at religious schools. So three families sued the state last year to get that tuition reimbursement for their children to attend Bangor Christian School in Bangor and Temple Academy in Waterville.

Angela and Troy Nelson, left, of Palermo, want to use state tuition reimbursement to send their children, Royce “R.J.” Nelson and Alicia Nelson, to a religious academy. This photo was taken when they and two other families originally filed suit in 2018. Joe Phelan/Kennebec Journal

The plaintiffs say the law violates their First Amendment protections for religious freedom, while the state says public money cannot be used for religious instruction. The families are represented by the Institute for Justice, a national law firm that takes cases on religious liberty and school choice, and they have been aiming for the nation’s highest court since they filed their lawsuit in 2018.

Michael Bindas, the group’s senior attorney, said the Supreme Court could use this case to tell states that they cannot exclude religious options from school choice programs.

“By singling out religion – and only religion – for exclusion from its tuition assistance program, Maine violates the U.S. Constitution,” Bindas said in a news release. “The state flatly bans parents from choosing schools that offer religious instruction. That is unconstitutional.”

This law has survived at least four legal challenges. The Supreme Court has never granted a petition for review before. The Institute for Justice was also involved in two of those cases, in 1997 and 2002, losing both times. In this case, the U.S. District Court of Maine and the 1st Circuit Court of Appeals in Boston both found the tuition program to be constitutional. The plaintiffs then petitioned the Supreme Court, which announced on Friday that it would take the case in its next term.

Maine Attorney General Aaron Frey said his office will defend the law as it has done in the past, and he is confident the Supreme Court will find it to be constitutional.

“Religious schools are excluded because the education they provide is not equivalent to a public education,” he said in a written statement. “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. Parents are free to send their children to such schools if they choose, but not with public dollars.”

The court, which now has a conservative majority, has issued two key opinions on religious liberty in recent years that could have a bearing on this one.

In one case, Trinity Lutheran Church in Missouri was barred from participating in a state program that reimburses the cost of rubberizing playground surfaces. In 2017, the nation’s highest court ruled that religious organizations cannot be excluded from state programs if they have a secular intent.

That opinion was the cue for the Institute of Justice to try again in Maine. But District Judge D. Brock Hornby said the Supreme Court did not revoke case law that bars public money from going to religious education. He also cited the Maine Human Rights Act, which prohibits religious groups from receiving public money if they maintain a discriminatory hiring policy against LGBTQ people. Both Bangor Christian and Temple Academy do so, according to court documents.

Last year, the Supreme Court considered a scholarship program in Montana that provided dollar-for-dollar tax credits for donations to private scholarship organizations. Those scholarships could be used at private schools, including religious ones. The justices ultimately ruled the program was constitutional. They said states don’t have to subsidize private education, but if they do, they cannot exclude religious schools just because they are religious. That ruling did not sway the 1st Circuit, which upheld Maine’s tuition program.

The case in Maine attracted attention from national groups on both sides of the issue, as well as the Trump administration. Some also filed briefs asking the Supreme Court to take the case.

“The drafters of the First Amendment’s Free Exercise Clause designed it to protect not only the right to be religious in some metaphysical sense but also the practical right to participate in religious activity, and that includes a religious curriculum and environment,” said John Bursch, the senior counsel and vice president of appellate advocacy at the Alliance Defending Freedom, a conservative legal organization that filed one such brief on behalf of the Jewish Coalition for Religious Liberty.

The American Civil Liberties Union of Maine also has followed this case closely since its beginning and sided with the state.

“Parents have an important constitutional right to direct their children’s education, but that’s not the same thing as having a right to force the state taxpayers to fund religion,” said Zachary Heiden, ACLU of Maine legal director.

Maine has 260 school administrative units serving nearly 180,000 students from kindergarten to 12th grade. More than half do not have their own secondary schools, but many sign contracts or make agreements with other schools to provide those services. In part because each community makes its own arrangements, it is not clear how many students are covered by the tuition program.

The plaintiffs who have taken the case to the Supreme Court are David and Amy Carson of Glenburn, and Troy and Angela Nelson of Palermo. Neither town has its own high school. A third family was part of the original lawsuit, but their daughter has since graduated from high school and is no longer eligible for the tuition program, so they are not part of this appeal.

Court documents show that the Carsons send their daughter to Bangor Christian Academy, but they pay her costs out of pocket because the school does not qualify for the tuition program. The Nelsons send their children to Erskine Academy, a private secular school that does qualify for the tuition program, but they would rather enroll them at Temple Academy, a religious school that they cannot afford without the reimbursement.

The court did not yet set a date for oral arguments, but they will likely take place in late fall or early winter.

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