In an August 28, 2018, photo, Bangor Christian Schools student Olivia Carson of Glenburn was dropped off by her mother, Amy Carson, in Bangor. The Carsons are one of three Maine families that are challenging the prohibition on using public money to pay tuition at religious schools. Credit: Gabor Degre / BDN

The U.S. Supreme Court on Friday said it will hear a case challenging Maine’s ban on public funding for religious schools, bringing a challenge to a state law from families in Glenburn, Orrington and Palermo to the nation’s highest court.

The families sued the Maine Department of Education in federal court in 2018 seeking tuition for their children to attend Bangor Christian Schools and Temple Academy in Waterville.

The high court on Friday said the case was one of nine for which it had granted writ of certiorari, meaning it will hear arguments in its next term after the families lost at the district and appellate court levels.

While the Supreme Court’s conservative wing and justices’ interest in cases involving religion have grown in recent years, the chances that the Maine case would end up before the court were still small. Justices agree to consider just one out of every 100 cases they are asked to review.

The case challenges a state law under which towns without public high schools pay tuition so local students can attend a public or private school of their choice in another community as long as it’s not a religious school.

The three families’ lawsuit sought public tuition for their children to attend Bangor Christian Schools and Temple Academy in Waterville.

The Virginia-based Institute for Justice has represented the families in court proceedings and lead attorney Michael Bindas will argue their case before the Supreme Court.

“Whenever school choice programs are adopted, opponents of choice argue that religious schools have to be excluded, or they run to court trying to challenge the program because they include religious schools,” Bindas said Friday. “If the Supreme Court rules correctly in this case, then that argument from school choice opponents will finally be put to rest.”

Maine Attorney General Aaron Frey, whose office will defend the state education department, said Friday that Maine’s law is constitutional because the Supreme Court has ruled that states can prevent the use of public funds for religious purposes.

The state excludes religious schools from its tuition program “because the education they provide is not equivalent to a public education,” Frey said. “Religious schools can and do advance their own religion to the exclusion of all others, discriminate in both the teachers they employ and the students they admit, and teach religious views inimical to what is taught in public schools.”

U.S. District Judge D. Brock Hornby rejected the plaintiffs’ argument in June 2019, shortly after the U.S. Department of Justice, under the Trump administration, intervened on the families’ behalf.

The families then appealed to the 1st U.S. Circuit Court of Appeals in Boston. But before a three-judge panel could rule on the case, the nation’s high court in June 2020 ruled 5-4 that a Montana program that makes donors to private school scholarships eligible for up to $150 in state tax credits, but prohibited the use of the scholarships at religious schools, was unconstitutional.

The appellate judges in Boston agreed to consider how that case affected Maine’s tuition law, making it the first instance of another court issuing a decision applying the Supreme Court’s ruling in the Montana case.

But the three-judge panel concluded on Oct. 29 that the state’s requirement that public money fund secular rather than religious education does not violate Mainers’ constitutional rights.

The appellate court found that the Montana decision did not apply because the Maine program is not based on the religious “status” of the schools but the schools’ “use” of public funds. Essentially, the court found Maine is within its rights to bar public money from paying for religious education. 

Lawyers for the three Maine families from the Institute for Justice maintained that the three-judge panel misapplied the Montana ruling, and asked the Supreme Court to weigh in.

The Institute for Justice was involved in the Espinoza case as well as two other religious school choice cases that have gone before the Supreme Court, Bindas said. The Supreme Court has ruled in the institute’s favor all three times.

Earlier this year, another federal court found that Vermont’s tuition program, which is similar to Maine’s, was unconstitutional under the Montana ruling. A three-judge panel for the 2nd Circuit Court of Appeals based in New York ordered the Green Mountain State to pay tuition to religious schools for students who lived in towns that did not have high schools. 

In April, the Vermont State Board of Education ordered the school districts of three students to pay the tuition for them to attend religious schools as part of a state tuition benefit that they were denied.

In deciding which cases to take up, the Supreme Court often looks to resolve conflicting rulings in the nation’s appellate courts — which exist in the Maine religious schools case.

Ten separate friend of the court briefs have been filed in support of the Maine families in the case, including one from the states of Arkansas, Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah and West Virginia, all of which allow public funding for religious schools.

No date has been set for the sides to argue their case before the justices, but arguments are likely to take place in the late fall or early winter, Bindas said. Before then, both sides will submit briefings to the court.