U.S. Supreme Court seems to favor extending Maine public tuition payments to religious high schools

Dec. 8—The U.S. Supreme Court has signaled that it could require Maine to expand a public tuition benefit to religious high schools.

The justices heard oral arguments Wednesday in a lawsuit that could have nationwide implications for school choice programs.

Maine allows students in towns with no public high schools to put taxpayer money toward the cost of an outside school, public or private. But the law bars them from using those funds at religious schools. The families who filed this lawsuit want to do away with that rule.

The conservative majority seemed sympathetic to the idea that the existing program discriminates against people based on their religious beliefs. They repeatedly posed hypotheticals about which private schools would be allowed to participate in the program and questioned what degree of religious instruction would be acceptable for a school to receive state funds. Some justices appeared to conclude that Maine's program made unfair value judgments.

"We have said that is the most basic violation of the First Amendment clauses for the government to draw distinctions between religions based on their doctrine," Chief Justice John Roberts said.

The plaintiffs are represented by the Institute for Justice, a national law firm that takes cases on religious liberty, and the court received more than three dozen amicus briefs on both sides of the issue.

Michael Bindas, senior attorney at the Institute for Justice, argued Wednesday that Maine is treating families differently based on their religion and should not be allowed to do so.

"Religious schools also teach secular subjects and satisfy every secular requirement to participate in the tuition assistance program," Bindas said. "You can call that discrimination based on religious use. You can call it discrimination based on religious status. Call it what you will. Either way, it is discrimination based on religion, and either way, it is unconstitutional."

Christopher Taub, Maine's chief deputy attorney general, defended the state program and said it is meant to give students access to free public education even when no public high schools exist in their towns.

"The petitioners want an entirely different benefit — instruction designed to instill religious beliefs at taxpayer expense," Taub said. "They are not being discriminated against. They are simply not being offered a benefit that no family in Maine is entitled to."

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, and many sign contracts or make agreements with other schools to provide those services. The law says SAUs that do not have public high schools can pay outside public or private schools to accept their students, so long as those schools aren't "sectarian." An SAU can pay up to the statewide average tuition rate — $11,275 last year — and the balance is the parents' responsibility.

More than 4,500 students attended private schools through a contract or the tuition program during the 2017-2018 year, according to court documents. The state says nearly all attended one of 11 private schools known as "town academies," like Thornton Academy in Saco. Another 208 students are receiving public funding at other private schools this year, a Maine Department of Education spokeswoman said on Tuesday.

It is not clear how many students in Maine attend religious schools at their own expense, or how many would attend religious schools if the court overturned the current law and they could use state tuition money.

In this case, three families filed a federal lawsuit in 2018. One is no longer involved in the litigation. The U.S. District Court of Maine and the 1st U.S. Circuit Court of Appeals in Boston both found Maine's tuition program to be constitutional. The plaintiffs then petitioned the Supreme Court to take the case.

The Institute for Justice has been involved in previous challenges to Maine's law, and the group decided to try again in light of a 2017 Supreme Court decision. In that case, Missouri barred a church from participating in a state program that reimbursed the cost of rubberizing playground surfaces. The court ruled that religious organizations cannot be excluded from state programs if they have secular intent, and Missouri had discriminated against this church based solely on its religious status.

Last year, while the lawsuit from Maine was pending, the Supreme Court issued another opinion that featured in arguments on Wednesday. The court considered a scholarship program in Montana that provides tax credits for donations to private scholarship organizations. When the state said those scholarships could not be used at religious schools, parents sued. The justices ultimately said the state could not exclude religious schools.

This story will be updated.