Federal court sides with Maine, denies tuition benefits to religious schools

Keith and Valori Radonis would like to send their three children to St. Dominic Academy, in Auburn, Maine, educating them in their Roman Catholic faith, but for now the couple can’t afford it. That’s because the state has effectively shut religious schools out of its tuition assistance program over their refusal to follow state requirements that they allow all religious expression equally and abide by the state’s view of gender orthodoxy.

Families in rural areas without their own high schools are the primary beneficiaries of the program, which pays tuition for students to attend either a private high school in or out of the district or a public high school in another district.

On Thursday, a federal judge sided with Maine education officials in a lawsuit that challenged enforcement of the state’s anti-discrimination law to religious schools. In a 75-page opinion, U.S. District Judge John Woodcock Jr. concluded that while the law is neutral, it is not generally applicable, as the state does not enforce its nondiscrimination provisions against either post-secondary private schools or schools outside of Maine that participated in the program.

Woodcock, a George W. Bush appointee, also found that while the law substantially burdened the religious expression of the Catholic school, the state’s compelling interest in eliminating discrimination outweighed its First Amendment interest.

Quoting a 1993 Supreme Court ruling, Woodcock wrote that a “law that targets religious conduct for distinctive treatment or advances legitimate governmental interests only against conduct with a religious motivation will survive strict scrutiny only in rare cases.” But he went on to say that “‘rare’ does not mean ‘never.’” Calling the state’s interest in eliminating discrimination a “weighty interest,” he said the state’s anti-discrimination law is likely to survive strict scrutiny.

Woodcock’s ruling comes only two years after the U.S. Supreme Court struck down a Maine law that excluded sectarian schools from the rural tuition assistance program. In Carson v. Makin, a court majority concluded that the state’s Blaine Amendment—named after Maine lawmaker James Blaine’s failed federal amendment in 1875—violated parents’ free exercise of religion because it treated religious and nonreligious parents differently.

But Woodcock dismissed parents’ arguments that the state’s legislative maneuvering during the time Carson was being litigated was an end-run around a ruling—and a conservative court—it didn’t like. A court filing by the Becket Fund for Religious Liberty, which represented the Radonises and the school, pointed to a 2022 news release by Maine Attorney General Aaron Frey. “[These schools] promote a single religion to the exclusion of all others, refuse to admit gay and transgender children, and openly discriminate in hiring teachers and staff,” Frey said.

Adèle Keim, the Becket attorney who represented the Radonises and St. Dominic, described Maine’s reaction to Carson. “Maine said, ‘No way. We’re not going to stand by that. We’re going to change another law, our education nondiscrimination law. We’re going to insert a couple poison pills that we know will be unacceptable to these religious schools,’” she said. “And they were quite open about that.”

In addition to targeting religious schools, the state’s own actions demonstrate that it does not believe nondiscrimination is a compelling interest, said Keim. By sending tuition dollars to schools in other states and to Quebec, schools over which the state lacks jurisdiction to enforce its nondiscrimination law, the state undercut its argument that its nondiscrimination interest is compelling, she added.

Schools like St. Dominic cannot apply for accreditation by the state because the requirements of the anti-discrimination law would compromise the schools’ religious beliefs, Keim said. Schools would be required to admit students of another faith or no faith and go along with students’ attempts to identify as a gender other than their biological sex without telling parents.

As a final “poison pill” in the law, schools that allow religious expression have to allow all religious expression equally. “The more religious a school is, the more the school allows students and teachers … to engage in religious expression, the more contrary religious expression it must by law permit,” Keim said.

On Friday, Becket appealed the ruling to the 1st U.S. Circuit Court of Appeals. The Boston-based federal appeals court is also considering an appeal of a February ruling by Judge Woodcock against Crosspoint Church’s Bangor Christian School on similar grounds. Texas-based First Liberty Institute represents the school. Neither appeal will likely be resolved until next year.

Meanwhile, parents like Keith and Valori Radonis face tough choices: scrape together the money to send their children to St. Dominic or homeschool them, neither of which may be possible, or send their children to a secular private school approved by the state to receive tuition funds. That’s a choice they say they shouldn’t have to make.

“Maine has tried to dress up its discriminatory policies in the hopes that it can continue to exclude religious schools from its public program,” said Becket in its 2023 motion asking the court to block enforcement of the anti-discrimination law. “But masked discrimination is still discrimination.”