979 F.3d 21
1st Cir.2020Background
- Maine statute provides tuition assistance for students in school administrative units (SAUs) that do not operate a public secondary school; parents may send children to an "approved" private school and the SAU pays tuition up to a statutory rate.
- To be "approved," a private school must meet curricular/attendance standards and be "nonsectarian in accordance with the First Amendment."
- Three sets of parents sued the Maine Commissioner (2018), claiming the "nonsectarian" requirement prevents them from using tuition assistance at religious schools and violates Free Exercise, Establishment, Free Speech, and Equal Protection rights.
- Record shows plaintiffs' chosen schools (Bangor Christian School and Temple Academy) provide "biblically integrated" instruction and would decline funding if it would subject them to Maine Human Rights Act hiring rules; they have not applied for approval because they believe it would be futile.
- District Court granted judgment to the Commissioner, relying on circuit precedent (Eulitt and Strout) and distinguishing Trinity Lutheran; plaintiffs appealed and raised Espinoza as new Supreme Court precedent bearing on the Free Exercise issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Article III standing / redressability | Plaintiffs (parents) have an injury-in-fact in loss of opportunity to obtain public funding for religious schools; invalidation would restore opportunity (Eulitt). | Commissioner: relief speculative because chosen schools may refuse to participate (MHRA consequences), so redressability lacking. | Court: Standing satisfied; redressability met because the injury is loss of opportunity traceable to §2951(2) and invalidation would restore that opportunity. |
| Free Exercise Clause | §2951(2) discriminates on religious status/use and thus triggers strict scrutiny under Trinity Lutheran and Espinoza. | The statute is use‑based (examines sectarian content of instruction), not status‑based; Maine may condition funding to secure a secular public-education equivalent; no strict scrutiny violation. | Court: Free Exercise claim fails; §2951(2) is use‑based and permissible in light of the statute's role as a substitute for secular public education. |
| Free Speech Clause | Excluding sectarian schools restricts parents' expressive choices and school speech. | Program funds secular education substitute, not a public forum for private speech; Eulitt controls. | Court: Free Speech claim rejected. |
| Establishment Clause / Equal Protection | Requirement causes excessive entanglement/hostility to religion; also discriminates in violation of Equal Protection. | Requirement rationally furthers legitimate state interest in providing a secular equivalent to public education and avoiding entanglement; no unlawful hostility. | Court: Claims rejected—no Establishment Clause violation shown; Equal Protection reviewed under rational basis and sustained. |
Key Cases Cited
- Eulitt ex rel. Eulitt v. Me. Dep't of Educ., 386 F.3d 344 (1st Cir. 2004) (upheld Maine's nonsectarian requirement previously and recognized parents' standing based on lost opportunity)
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (exclusion of religious entities from public benefits because of religious character triggers strict scrutiny)
- Espinoza v. Montana Dep't of Revenue, 140 S. Ct. 2246 (2020) (state exclusion of religious schools from otherwise available public benefits because of religious status triggers strict scrutiny)
- Locke v. Davey, 540 U.S. 712 (2004) (upheld refusal to fund devotional theology degrees; recognized "play in the joints" between Establishment and Free Exercise)
- Zelman v. Simmons‑Harris, 536 U.S. 639 (2002) (upheld school‑choice voucher program against Establishment challenge)
- Bennett v. Spear, 520 U.S. 154 (1997) (third‑party coercive/determinative effects can establish traceability for standing)
- Northeastern Fla. Chapter, Associated Gen. Contractors v. City of Jacksonville, 508 U.S. 656 (1993) (organization had standing to challenge set‑aside provision based on denial of opportunity to compete)
- Romer v. Evans, 517 U.S. 620 (1996) (rational basis review can fail where proffered rationales are implausible)