In this August 2018 photo, Bangor Christian Schools then-sophomore Olivia Carson of Glenburn was dropped off on the first day of school by her mother, Amy Carson in Bangor. The Carsons are one of three Maine families challenging the prohibition on using public money to pay tuition at religious schools. Credit: Gabor Degre / BDN

A new federal court opinion in Vermont improves the chances that a Maine case challenging the state’s ban on public funding for religious schools could end up before the nation’s highest court, according to a constitutional law scholar.

The three families — with children who attended Bangor Christian Schools and Temple Academy in Waterville — are challenging a state law under which towns without public high schools pay tuition so local students can attend public or private schools of their choice in other communities as long as they’re not religious.

Federal courts have so far upheld the Maine law, even in light of recent U.S. Supreme Court decisions that invalidated state restrictions on the use of public money for religious institutions. The families have appealed their case to the U.S. Supreme Court and are waiting to hear whether it will hear their case.

But in Vermont, two federal courts have now ruled mostly in favor of families challenging a similar state tuition program to Maine’s. The odds are still “somewhat low” that the Supreme Court will take up the Maine case because the court ultimately hears few cases, said Dmitry Bam, vice dean and provost at the University of Maine School of Law.

The case still has a better chance now given the split between the federal appellate courts, he said.

“In addition, the court has expressed interest in recent years in hearing religious liberty cases and has sought to bring some clarity to this jurisprudence,” Bam said.

While the Supreme Court has wide latitude to choose the cases it will hear, it often seeks out cases that allow it to resolve conflicting opinions among federal appeals courts, according to the U.S. court system’s website.

“Here you have two virtually identical programs and two different courts of appeals coming to opposite conclusions regarding the exclusion of religious options,” said Michael Bindas, a senior attorney with the Virginia-based Institute for Justice and lead attorney for the three Maine families. “And that is the type of conflict the U.S. Supreme Court would typically see as worthy of its review.”

In January, a U.S. District Court judge found the Vermont school districts and the state education agency violated the First Amendment in barring families from using public tuition dollars to attend a Catholic school in South Burlington simply because of the school’s religious affiliation.

But the court gave the districts and the state time to develop restrictions on the use of public money at religious schools. The court said the school districts had to comply with a 1999 state supreme court decision that found public money could not be used for “religious education,” but did not prohibit the use of public money at religiously affiliated schools.

An opinion issued Wednesday by a three-judge panel from the 2nd Circuit Court of Appeals, however, said the district court was wrong, and it ordered school districts to let families use public tuition money to attend religious schools. The families challenging the law “have been deprived of a public benefit as a result of the state’s and the school districts’ decades-long policy of unconstitutional religious discrimination,” the judges wrote.

In a concurring opinion, Judge Steven Menashi, an appointee of former President Donald Trump, argued that attempting to bar the use of public funds for religious uses is the same kind of discrimination as barring religious schools from receiving public money.

“It’s silly to say that you might not be able to exclude a school because it is religious but perhaps you can exclude them because it does religious things,” Bindas said. “It’s discrimination either way.”

The U.S. Supreme Court is expected to decide whether to hear the pending Maine case by late June or early July. The Maine law explicitly allows the use of public tuition money only at “nonsectarian” schools. But the state has argued that the law isn’t discriminatory because a school’s religious affiliation on its own doesn’t determine whether the school is sectarian.

Maine Attorney General Aaron Frey, a Democrat, said Wednesday his office is awaiting the Supreme Court’s decision on whether it will hear the religious school funding case.

“We remain confident that Maine’s system of providing a free public education to all children, regardless of where they live, is constitutional,” he said.