No choice on school choice

Three families in rural areas of Maine without public high schools can send their children to private school but not Christian school on the government’s dime, an appeals court ruled Thursday.

The decision “allows the state of Maine to continue discriminating against families and students seeking to attend religious schools, and we will immediately appeal to the U.S. Supreme Court,” said Tim Keller, an attorney with the Institute for Justice, which represents the parents.

In a 63-page opinion, 1st U.S. Circuit Court of Appeals Judge David Barron, writing for a three-judge panel, said Maine’s requirement that schools receiving state funds be nonsectarian did not violate the First Amendment’s right to the free exercise of religion. The panel included retired Supreme Court Justice David Souter, who, like other retired justices, sits on the federal appellate bench by designation of the U.S. chief justice.

Keller said the 1st Circuit’s decision conflicts with the Supreme Court’s June ruling in Espinoza v. Montana Dept. of Revenue. That decision struck down that state’s Blaine Amendment, which barred public aid from going to educational institutions “controlled in whole or in part by any church, sect, or denomination.”

Barron distinguished between the Montana law’s focus on religious status and Maine’s focus on religious use.

“Sectarian schools are denied funds not because of who they are but because of what they would do with the money—use it to further the religious purposes of inculcation and proselytization,” Barron wrote.

The 1st Circuit decision also is at odds with another recent 2nd Circuit decision stating Vermont cannot exclude high school students attending religious schools from a program paying for them to take college classes—meaning this issue will not go away anytime soon.