Legal experts think Maine is bound to lose its religious school funding case

Dec. 9—Legal experts predicted that the U.S. Supreme Court would find that Maine's ban on public funding for religious schools violates the U.S. Constitution after oral arguments before justices on Wednesday.

Maine Attorney General Aaron Frey said that the state "made a compelling case for the constitutionality of Maine's system of public education" but did not predict how the court would rule next year.

The case, originally filed in federal court in Bangor in 2018, challenges a state law under which towns without public high schools pay tuition so local students can attend a public or private school of their choice in another community as long as it's not a religious school.

The lawsuit, filed by two sets of parents, David and Amy Carson of Glenburn and Troy and Angela Nelson of Palermo, sought public tuition for their children to attend Bangor Christian S­chools and Temple Academy in Waterville respectively.

A federal judge in Maine ruled for the state in June 2019, and the 1st U.S. Circuit Court of Appeals upheld his decision.

The legal question hinges on whether Maine is, in practice, barring public money from going to a school based on its religious status or because it would use the money to teach religion.

Carson v. Makin is one of just a few cases from Maine that has come before the high court. Court watchers have said that it could further define how a conservative 6-3 majority views the separation of church and state.

Dmitry Bam, vice dean of the University of Maine School of Law, said after the arguments that the majority of the justices were skeptical of Maine's arguments.

"For the conservative justices, this case was largely indistinguishable from earlier cases upholding school choice programs, and they didn't seem to give much weight to Maine's distinction that this is really just a narrow category of state funding of public education," Bam said.

It was clear that justices Amy Coney Barrett and Brett Kavanaugh, both appointees of former President Donald Trump, saw Maine's tuition program as a school choice program, "not an outsourcing of public education to private entities," he said. "The court also seemed skeptical of the status versus use distinction, and I believe views this case as more of a 'status' problem than a 'use' problem."

Matthew Gagnon, head of the Maine Policy Institute, a conservative think tank called the state's argument over status versus use "a distinction without a difference."

"Religious discrimination is religious discrimination," he said. "The high court has ruled that a state need not subsidize private education, but once it does, it cannot disqualify some schools solely because they are religious. That is exactly the discrimination that occurs in Maine's town tuitioning program."

Zachary Heiden, staff attorney with the American Civil Liberties Union of Maine, agreed with Bam's assessment that most justices were "skeptical" of the state's position.

Heiden said the case was unusual compared with other religious school cases the court has considered because it was brought by parents and not the schools themselves.

"There is no evidence that these schools want to participate in the [public funding] program," he said.

That would minimize the impact of a ruling that says the state must fund religious schools, according to Frey.

If Bangor Christian and Temple Academy in the future accept public money, they would have to comply with the Maine Human Rights Act, which makes it illegal to refuse to hire a person based on sexual orientation or gender identity, he said.

Under a set of changes to the Maine Human Rights Act that took effect Oct. 18, religious schools that accept public funds are prohibited from discriminating against LGBTQ students and staff members, he said. If they accept public money, they wouldn't, for example, be able to deny admission to a transgender student or refuse to hire a gay staff member.

"These schools want to continue to discriminate against individuals based on their status in a protected class and that is inconsistent with the protections afforded to all Mainers under the MHRA," Frey said.

Amy Carson, a plaintiff in the case, said that she was glad her family had agreed to be part of the case but was surprised at how long it took to get to the U.S. Supreme Court.

Her daughter, Olivia, now 19, graduated from Bangor Christian Schools last spring.

While the court's justices appeared clear in their leanings Wednesday, "it is never a good idea to draw conclusions on how a case is going to come out based on oral arguments," Heiden said.

"The case is more likely to be decided on the arguments in the briefs."

A decision is not expected before the spring.