The U.S. Supreme Court has signaled that it could side with Maine parents who want to use public funds to send their children to religious schools.

The justices heard oral arguments Wednesday in a legal challenge 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 schools that teach a specific religion. The families who filed this lawsuit want to do away with that rule.

The conservative majority on the Supreme Court seemed sympathetic to the idea that Maine’s existing program discriminates against people based on their religious beliefs. Justice Brett Kavanaugh used the example of two neighboring families: one family uses the benefit to send a child to a secular private school at no cost, while the other is not eligible for the benefit and therefore pays for a child to attend a religious private school.

“That’s just discrimination on the basis of religion right there at the neighborhood level,” Kavanaugh said.

The law in question impacts only a small number of students in Maine, but the case has attracted national attention. The plaintiffs are represented by the Institute for Justice, a national law firm that takes cases on religious liberty and school choice, and the Supreme Court received more than three dozen amicus briefs on both sides of the issue. A ruling is not expected until next year.

Michael Bindas, senior attorney at the Institute for Justice, said after the hearing that he is confident the justices will overturn Maine’s law and bolster school choice programs in other states.

SEEING AN OPPORTUNITY

“When school choice opponents routinely attack these programs, claiming you have to exclude religion, that argument will no longer be available to them,” Bindas said. “What that means is that state legislatures throughout the country will feel empowered and secure in the notion that if they pass these programs, they will be constitutionally sound.”

Maine Attorney General Aaron Frey said the state defended the law well, but he is worried that some justices see the case as a vehicle to expand the use of taxpayer money for religious purposes.

“Of course I am concerned that, based on some of the questioning that we heard from some of these justices, that they may be viewing this case as an opportunity to continue moving in a direction that has state dollars paying for religious instruction,” Frey said.

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 approved 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 school year. The state says nearly all attended one of 11 private schools known as “town academies,” like Thornton Academy in Saco. The Maine Department of Education said another 200 students receive public funds each year to attend other private schools through the tuition program.

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

ARGUING DISCRIMINATION

During the arguments, Bindas said 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.”

The justices asked Bindas how they should apply a 2002 Supreme Court ruling that said Ohio parents could use a voucher program to send their children to religious schools, and whether they should even consider Maine’s unique program to be comparable to school choice programs that exist elsewhere.

“These parents are put to the same choice that every other parent in Maine is put to,” Justice Sonia Sotomayor said. “Either get a free public secular education or pay for your religious training. They’re being treated as everybody else is.”

“They are not, Your Honor,” Bindas replied. “In some school districts in Maine, government provides a financial benefit that can be used at the public or private school of the parent’s choice. That is — ”

“They’re getting more than other parents,” Sotomayor interjected. “Most other parents have only one choice: Send them to the public school if it exists, send them to the contracted school that exists, or don’t.”

“And that’s always true with a school choice program, Your Honor,” Bindas said.

Christopher Taub, Maine’s chief deputy attorney general, said the program should be viewed through a different lens. He said it is designed to give students access to a free public education when no public high schools exist in their towns, so private schools that participate must provide the equivalent of a public education.

“The reason that schools that promote a particular faith are not eligible to participate is simple,” he said. “Maine has determined that, as a matter of public policy, public education should be religiously neutral. This is entirely consistent with this court’s holdings that public schools must not inculcate religion and should instead promote tolerance of divergent religious views. The petitioners want an entirely different benefit – instruction designed to instill religious beliefs at taxpayer expense. They are not being discriminated against. They are simply not being offered a benefit that no family in Maine is entitled to.”

DEGREES OF RELIGIOUS INSTRUCTION?

Taub said that Maine does not actually exclude all religious schools from the program. A private school that has a religious affiliation could be eligible if it does not teach its beliefs above others or require participation in religious subjects.

He used the example of the Cardigan Mountain School across the border in New Hampshire. The school has a chapel, but it is used for assemblies, not for religious instruction, he said, so it was approved to receive public tuition.

The justices drilled into that idea. They posed numerous hypotheticals about what sort of private schools would be allowed to participate in the program and questioned what degree of religious instruction would be acceptable in order for a school to receive state funds. Some 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.

“Again, Your Honor, we’re not drawing those distinctions based on doctrine,” Taub said. “We are drawing those distinctions based on what the school is going to promote.”

Derek W. Black, a law professor at the University of South Carolina, is an expert in education law and contributed a brief in support of the state. He listened to the arguments Wednesday and said he did not think the justices would vote to uphold Maine’s program.

WIDESPREAD RAMIFICATIONS

“The ramifications of ruling against Maine are enormous, beyond Maine and beyond this program,” Black said. “What you’re really doing is hamstringing the state’s ability to control its own money.”

The Maine Policy Institute, a right-leaning think tank in Portland, submitted a brief in support of the plaintiffs with EdChoice, a national organization that advocates for school choice.

“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,” CEO Matthew Gagnon said in a written statement Wednesday. “That is exactly the discrimination that occurs in Maine’s town tuitioning program, and we hope the high court ends this practice in its ruling next year.”

If the Supreme Court does overturn the law, it is not clear whether the schools mentioned by the plaintiffs in their lawsuit would even participate. Leaders at Bangor Christian Schools in Bangor and Temple Academy in Waterville have not taken a position in court. The state said those two schools discriminate against teachers and students based on sexual orientation and gender identity, so they would be forced to change those policies or reject public funds even if the plaintiffs win this case.

Three families filed this 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.