Julia ANDERSON et al.
v.
TOWN OF DURHAM et al.
Supreme Judicial Court of Maine.
*947 Jeffrey T. Edwards, Preti Flaherty Beliveau Pachios & Haley, L.L.P., Portland, Richard D. Komer (orally), Clark M. Neily, Institute for Justice, Arlington, VA, for plaintiffs.
G. Steven Rowe, Atty. Gen., Paul Stern, Deputy. Atty. Gen. (orally), William H. Laubenstein III, Asst. Atty. Gen., Sarah Forster, Asst. Atty. Gen., Augusta, Michael E. Saucier (orally), Thompson & Bowie, L.L.P., Jeffrey A. Thaler (orally), Bernstein Shur Sawyer & Nelson, P.A., Zachary Heiden, Maine Civil Liberties Union Foundation, Portland, Peter J. Brann, Brann & Isaacson, Lewiston, Andrew D. Roth, Bredhoff & Kaiser, P.L.L.C., Robert H. Chanin, National Education Association, Washington, DC, for defendants.
Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.[*]
Majority: SAUFLEY, C.J., and DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.
Concurrence: SAUFLEY, C.J., and LEVY, J.
Dissent: CLIFFORD, J.
ALEXANDER, J.
[¶ 1] In this case, we review again whether Maine's tuition payment statute, 20-A M.R.S. § 2951(2) (2005), violates the First and Fourteenth Amendments of the United States Constitution. The statute authorizes the use of public funds to pay tuition at approved private schools on behalf of students who live in districts that do not operate a public high school, provided the school is nonsectarian. We upheld section 2951(2) against a constitutional challenge in Bagley v. Raymond School Department,
I. CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE
[¶ 2] The constitutional requirements at issue in this case are stated in the First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment to the United States Constitution.[1] The First Amendment states, in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...."
[¶ 3] The statute at issue is 20-A M.R.S. § 2951(2). Title 20-A M.R.S. § 2951 (2005) states in part: "A private school may be approved for the receipt of public funds for tuition purposes only if it: ... (2) ... [i]s a nonsectarian school in accordance with the First Amendment of the United States Constitution."
II. LEGAL HISTORY
[¶ 4] We extensively discussed the history and nature of section 2951(2) in Bagley,
[¶ 5] Before 1980, Maine's tuition statute permitted payment of public funds to approved sectarian schools for tuition payment purposes. In 1980, in response to an inquiry from a member of the Legislature, Maine's Attorney General issued an opinion stating that using public funds to pay tuition at private, religious schools violated the Establishment Clause. Op. Me. Att'y Gen. 80-2. The Legislature then enacted section 2951(2), which precluded sectarian schools from being approved for receipt of public tuition funds. P.L. 1981, ch. 693, § 5.
[¶ 6] The tuition payment statute imposes a number of obligations on schools that receive public tuition funds. It states:
§ 2951. Approval for tuition purposes
*949 A private school may be approved for the receipt of public funds for tuition purposes only if it:
1. Basic approval. Meets the requirements for basic school approval under subchapter I;
2. Nonsectarian. Is a nonsectarian school in accordance with the First Amendment of the United States Constitution;
3. Incorporated. Is incorporated under the laws of the State of Maine or of the United States;
4. Repealed. Laws 1983, c. 859, § A, 8.
5. Additional requirements. Complies with the reporting and auditing requirements in sections 2952 and 2953 and the requirements adopted pursuant to section 2954;
6. Student assessment. Any school that enrolls 60% or more publicly funded students, as determined by the previous year's October and April average enrollment, shall participate in the statewide assessment program to measure and evaluate the academic achievements of students; and
7. Release of student records. Upon the request of a school unit, release copies of all student records for students transferring from the private school to the school unit.
20-A M.R.S. § 2951 (2005).
[¶ 7] Bagley upheld section 2951(2) in the face of a First and Fourteenth Amendment challenge.[4] At that time, another group of parents brought suit in federal court challenging section 2951(2). The Court of Appeals for the First Circuit determined that section 2951(2) was constitutional in Strout v. Albanese,
[¶ 8] In Zelman, the United States Supreme Court upheld the constitutionality of an Ohio tuition voucher program that authorized the use of public funds to pay for a child's education at any approved school selected by the parents, including a religious school, determining that the particular program did not conflict with the Establishment Clause.
[¶ 9] After the Supreme Court decided Zelman, a bill to repeal section 2951(2) was introduced in the Maine Legislature. L.D. 182 (121st Legis. 2003). The bill did not pass. Thereafter, the plaintiffs initiated this lawsuit to test the constitutional viability of section 2951(2) after Zelman. As before, a different group of parents brought suit in federal court, challenging section 2951(2) on similar grounds. The federal case culminated in a decision of the Court of Appeals for the First Circuit holding that, even after Zelman, the Constitution does not require the State of Maine to fund tuition at sectarian schools. Eulitt v. State of Me., Dep't of Educ.,
III. FACTUAL AND PROCEDURAL HISTORY
[¶ 10] The facts in this case are largely stipulated and are not in dispute. The plaintiffs are parents of high school age children who reside in Minot, Raymond, *950 and Durham.[5] The school administrative units within these towns do not operate a public high school. Minot has contracted with the Town of Poland to provide a secondary education to ninety per cent of Minot's students. A student's family may apply to attend another high school, and approval is given on a case-by-case basis, based on educational program requirements.
[¶ 11] Raymond has contracted with the Town of Windham to take fifty percent of Raymond's high school students beginning in 2003.[6] The City of Westbrook has agreed to enroll as many of Raymond's high school students as Raymond wishes. As of October 1, 2003, twenty-five high school students from Raymond, supported by public funds, attended approved private high schools.
[¶ 12] Durham does not have a contract with any neighboring school district, but most of its high school students attend Brunswick High School. As of April 1, 2004, three high school students from Durham attend approved private high schools with public funds.
[¶ 13] The plaintiffs are parents who have elected to send their children to private religious schools that do not qualify as nonsectarian schools for payment of tuition with public funds. For the 2002-2003 school year, one student attends a pervasively sectarian[7] Seventh Day Adventist school. Courses in the religion are required, and students must attend chapel and religious assemblies. Students at these schools cannot avoid Seventh Day Adventist teachings.
[¶ 14] The remaining students attend St. Dominic's Regional High School in Auburn. St. Dominic's is a private, pervasively sectarian Roman Catholic High School operated under the authority of the Roman Catholic Bishop of Portland. Its admissions policy gives preference to students whose families are registered members of Catholic parishes. Participation in religious classes and the spiritual life of the school is mandatory, and students cannot avoid Catholic teachings. Applicants for teaching positions must mirror "gospel values" and understand the role of the school as a "unique pastoral, educational agency of the church." Some of the parents chose St. Dominic's because of its academic program and what they perceive as a stronger level of discipline; some because of sports opportunities; some because the school promotes their sincerely held beliefs as Catholics.
[¶ 15] None of the parties asserts that their religious beliefs mandate that they send their children to religious schools.
[¶ 16] The parents brought this action against each of the Towns, the Town School Departments, and Town School Superintendents *951 (the Town Defendants), as well as the Maine Department of Education and the Commissioner (the State). They seek (1) a declaratory judgment that section 2951(2) violates the Establishment, Free Exercise, and Equal Protection clauses of the First and Fourteenth Amendments to the United States Constitution; (2) an injunction that would forbid the Town Defendants from enforcing section 2951(2); and (3) reimbursement from the Towns for tuition paid to the religious schools, attorney fees, and costs. The parents seek to hold the Town Defendants liable pursuant to 42 U.S.C.A. § 1983 (West 2003), on the ground that they deprived plaintiffs of their constitutional rights under color of state law.
[¶ 17] The Maine Civil Liberties Union and nine residents of the Town of Raymond have intervened as defendants in support of the continuing validity of section 2951(2).
[¶ 18] The trial court granted in part the Town Defendants' motions to dismiss, on the ground that the complaint failed to state a claim upon which relief may be granted pursuant to 42 U.S.C.A. § 1983. After discovery, the remaining parties filed cross-motions for summary judgment. The parties filed an extensive joint stipulation of facts, as well as separate statements of material facts. The Superior Court entered a summary judgment in favor of the State, holding that section 2951(2) did not violate the Constitution. The parents appeal both the order dismissing the Town Defendants and the summary judgment entered in favor of the State. Because we determine that section 2951(2) does not violate the United States Constitution, we do not reach the issues raised on appeal from the order dismissing the Town Defendants.
IV. GOVERNING PRECEDENTS
A. Standard of Review
[¶ 19] We review trial court rulings on issues of law and statutory interpretation de novo. See Ashe v. Enter. Rent-A-Car,
[¶ 20] In our review of the constitutional issues presented in this case, we are aided by our own precedent and by recent opinions of federal courts that inform our decision-making on all major issues presented to us in this appeal. Accordingly, we recount our holding in Bagley, examine the law as it has evolved since we decided Bagley, and analyze the impact of current law on the claims before us.
B. Bagley v. Raymond School Department
[¶ 21] In Bagley, after reviewing First and Fourteenth Amendment jurisprudence involving public funding of religious schools, we determined that section 2951(2) did not violate those constitutional provisions.
[¶ 22] We undertook our analysis in Bagley in three parts, examining separately whether section 2951(2) violates the Free *952 Exercise, Establishment, and Equal Protection Clauses of the United States Constitution.
1. Free Exercise Clause
[¶ 23] The Free Exercise Clause of the First Amendment provides that "Congress shall make no law ... prohibiting the free exercise [of religion] . . . ." U.S. CONST. amend. I.[8] Upon a challenge to government action on Free Exercise grounds, the inquiry is "whether government has placed a substantial burden on the observation of a central religious belief or practice and, if so, whether a compelling governmental interest justifies the burden." Bagley,
[¶ 24] The party challenging a statute on free exercise grounds must initially demonstrate that: (1) the activity burdened by the regulation is motivated by a sincerely held religious belief; and (2) the challenged regulation restrains the free exercise of that religious belief. Blount v. Dep't of Educ. & Cultural Servs.,
[¶ 25] The parents in Bagley contended that section 2591(2) violates the Free Exercise Clause by burdening their fundamental right to send their children to religious schools. Because it is "not within the judicial ken to question the centrality of particular beliefs," Employment Div., Dep't of Human Res. of Or. v. Smith,
2. Establishment Clause
[¶ 26] The Establishment Clause provides that "Congress shall make no law respecting an establishment of religion." U.S. CONST. amend. I. It prevents a state from enacting laws that have the "purpose" or "effect" of advancing or inhibiting religion, Agostini v. Felton,
[¶ 27] We determined in Bagley that there is "no support for the proposition that the Establishment Clause prevents a state from refusing to fund religious schools." Id. ¶ 22,
Distilled to its essence, the Establishment Clause prohibits the government from supporting or advancing religion and from forcing religion, even in subtle ways, on those who choose not to accept it. It has no role in requiring government assistance to make the practice of religion more available or easier. It simply does not speak to governmental actions that fail to support religion.
Id. (footnote omitted). Accordingly, we determined that the prohibition against approving religious schools to receive public tuition funds did not violate the Establishment Clause. Id.
3. Equal Protection Clause
[¶ 28] The Equal Protection Clause of the Fourteenth Amendment forbids any state from denying "to any person within its jurisdiction the equal protection of the laws," U.S. CONST. amend. XIV, § 1, and requires, generally, that persons similarly situated be treated alike. See Plyler v. Doe,
[¶ 29] If government action that is challenged on equal protection grounds infringes on a fundamental constitutional right, or involves an inherently suspect classification such as race, it is subject to analysis under the strict scrutiny standard. Sch. Admin. Dist. No. 1 v. Comm'r, Dep't of Educ.,
[¶ 30] In Bagley, we did not address which level of scrutiny should be applied in analyzing whether section 2951(2) violated the Equal Protection Clause. Because the State proffered only one justification for the statute compliance with the Establishment Clause we determined that the Establishment Clause analysis would define the scope of our Equal Protection inquiry. Bagley,
If the exclusion of religious schools is not required by the Establishment Clause of the First Amendment, it must be struck down because the State offers no other reason for its existence. If the exclusion is required in order to comply with the Establishment Clause, the State will have presented a compelling justification for the disparate treatment of religious schools, and the parents' Equal Protection claim will fail. See Widmar v. Vincent,454 U.S. 263 , 271... (1981) (agreeing that compliance with constitutional obligations "may be characterized as compelling.").
Id. ¶ 33,
[¶ 31] Even though the Supreme Court had begun to relax the strict prohibition against channeling public funds, at least indirectly, to religious schools,[12] we concluded that the then-current Establishment Clause jurisprudence required Maine to continue to exclude religious schools from approval for state paid tuition. Id. ¶¶ 60-61,
[¶ 32] Shortly thereafter, the First Circuit, presented with a similar constitutional challenge to section 2951(2), came to substantially the same conclusions that we had reached in Bagley. Strout,
C. Zelman v. Simmons-Harris
[¶ 33] In Zelman, a group of Ohio taxpayers filed suit to enjoin an Ohio tuition assistance program that provided public funds for tuition at schools of the parents' choice, including private, religious schools.
[¶ 34] Any private school, religious or nonreligious, was eligible to participate in the program, provided it was located within or adjacent to a covered district and met statewide educational standards. Id. at 645. Participating schools had to agree *955 not to discriminate on the basis of race, religion, or ethnic background, or to "advocate or foster unlawful behavior or teach hatred of any person or group on the basis of race, ethnicity, national origin, or religion." Id. (quotation marks and citation omitted.) Tuition aid was distributed to parents according to financial need. Id. at 646. "Where tuition aid is spent depends solely upon where parents who receive tuition aid choose to enroll their child. If parents choose a private school, checks are made payable to the parents who then endorse the checks over to the chosen school." Id. In the 1999-2000 school year, ninety-six percent of the children who participated in Ohio's tuition assistance program enrolled in religious-affiliated schools. Id. at 647,
[¶ 35] The Supreme Court determined that the Ohio program did not violate the Establishment Clause. The Court focused not on whether a religious institution benefited from receipt of public funds, but on the fact that the funds were channeled indirectly to that institution as a result of private choice. Id. at 652-53,
[W]here a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice, the program is not readily subject to challenge under the Establishment Clause. A program that shares these features permits government aid to reach religious institutions only by way of the deliberate choices of numerous individual recipients. The incidental advancement of a religious mission, or the perceived endorsement of a religious message, is reasonably attributable to the individual recipient, not to the government, whose role ends with the disbursement of benefits.
Id. at 652,
D. Locke v. Davey
[¶ 36] In Locke, the Supreme Court again addressed application of the First Amendment to educational funding issues. The Court upheld a Washington State college scholarship program that prohibited the use of scholarship funds for pursuit of a devotional theology degree.
[¶ 37] The Court in Locke indicated that Zelman stands for the proposition that under the Establishment Clause, "the link between government funds and religious training is broken by the independent and private choice of recipients." Id. at 719,
[¶ 38] Because the Court in Locke found no free exercise violation, it subjected the plaintiff's due process claim to rational basis scrutiny. Id. at 720 n. 3,
E. Eulitt v. State of Maine Department of Education
[¶ 39] The parents in Eulitt, argued that the State's asserted interest in maintaining the sectarian school exclusion in order to avoid an Establishment Clause violation was no longer valid after Zelman, undermining the First Circuit's decision in Strout.
[¶ 40] Because it concluded that the Free Exercise Clause "defines the scope of the fundamental right to religion incorporated by the Fourteenth Amendment's equal protection guarantee," id. at 353, the Eulitt court assessed whether section 2951(2) comports with the Free Exercise Clause, and then applied rational basis scrutiny "to any further equal protection inquiry," id. at 354. The court held that section 2951(2) imposes no impermissible burden on religion because it does not prohibit attendance at religious schools or prevent parents from choosing religious education for their children. Id. at 354-55. It reasoned that the guarantee of protection from government encroachment does not translate into an affirmative requirement that public entities fund religious activity simply because they fund the secular equivalent of that activity. Id.
[¶ 41] Finding that section 2951(2) did not violate the parents' free exercise rights, the court stated that "we have no occasion to ponder whether Maine's Establishment Clause defense constitutes a compelling interest that justifies the challenged restriction." Id. at 356. The court applied rational basis scrutiny to the statute, pursuant to which the burden was on the parents as challengers of the statute to demonstrate that "there exists no fairly conceivable set of facts that could ground a rational relationship between the challenged classification and the government's legitimate goals." Id. In Eulitt, the parents conceded that if the rational basis test applied, their equal protection claim failed as a matter of law. Id.
[¶ 42] The Court in Eulitt read Locke broadly, stating that "the decision there recognized that state entities, in choosing how to provide education, may act upon their legitimate concerns about excessive entanglement with religion, even though *957 the Establishment Clause may not require them to do so." Id. at 355.
V. ANALYSIS OF ISSUES
A. Motivation for Adoption of Section 2951(2)
[¶ 43] In the 1970s and early 1980s the trend in United States Supreme Court decision-making on Establishment Clause/Free Exercise issues strongly disfavored use of public funds for direct or indirect payments to religious institutions, including religious schools. See Aguilar,
[¶ 44] This trend in Federal Court decision-making regarding cash payments that would go directly or indirectly to religious institutions, although relaxed somewhat in the late 1980s and early 1990s,[15] continued to influence United States District Court and Court of Appeals decisions, including the lower court decisions in Zelman.[16]
[¶ 45] Many of the actions that challenged use of public funds for religious purposes included claims for violation of civil rights pursuant to 42 U.S.C.A. § 1983, for injunctive relief, and for attorney fees pursuant to 42 U.S.C.A. § 1988. In 1983 actions, attorney fees could be awarded whether a party prevailed on the § 1983 claim or other grounds. Farrar v. Hobby,
*958 [¶ 46] Had the tuition subsidy program continued as it existed in 1980, paying public funds for tuition to religious schools, the program faced a high risk of a successful challenge that could have resulted in disruption of the entire tuition subsidy effort and a costly attorney fee award to be paid by Maine taxpayers. Thus, in the legal climate of 1980, the Maine Attorney General gave good advice regarding the propriety of using public funds to pay tuition at religious schools. The Maine Legislature acted prudently and responsibly in taking that advice and enacting section 2951(2).
[¶ 47] The actions of the Attorney General and the Legislature were not motivated by any religious animus and were motivated by a desire to respect and comply with the requirements of the Establishment Clause as then interpreted and applied by the United States Supreme Court.
B. Free Exercise and Limitation of Choice
[¶ 48] The parents assert that the government, when making a range of choices available to a group, may not limit those choices on the basis of religion without violating the Free Exercise Clause. The failure to consider the neutrality problem, they argue, undermines the Free Exercise and Establishment Clause holdings in Bagley.
[¶ 49] A statute that is not neutral but either disfavors religion on its face or has been motivated by animosity against religion is subjected to heightened judicial scrutiny and can be justified only upon a demonstration of a compelling governmental interest in the statute. Church of Lukumi Babalu Aye, Inc. v. City of Hialeah,
[¶ 50] In Locke, the Supreme Court rejected the argument that the scholarship restriction was presumptively unconstitutional because it was not neutral with respect to religion, citing City of Hialeah. Locke,
[¶ 51] The Court in Locke distinguished the scholarship restriction from the ordinances in Hialeah, finding that although not neutral on its face, the scholarship restriction nevertheless withstood constitutional challenge because
[Washington's program] imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community. And it does not require students to choose between their religious beliefs and receiving a government benefit. The State has merely chosen not to fund a distinct category of instruction.
[¶ 52] The Eulitt court assessed whether, after Locke, section 2951(2) was unconstitutional on the ground of non-neutrality. *959 The court held that the mere exclusion of sectarian schools as recipients of public funds does not create a presumption of animosity against religion, and found that the record contained no evidence that the statute had been motivated by such animosity.
Maine's decision not to extend tuition funding to religious schools does not threaten any civil or criminal penalty. By the same token, it does not in any way inhibit political participation. Finally, it does not require residents to forgo religious convictions in order to receive the benefit offered by the statea secular education.
Id.
[¶ 53] In Bagley we suggested that section 2591(2) was not neutral on its face, and we subjected the statute to strict scrutiny.
[¶ 54] A burden upon religion exists when "the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs." Thomas v. Review Bd. of the Ind. Employment Sec. Div.,
[¶ 55] The fact that after Zelman the Legislature could hypothetically extend tuition funding to sectarian schools without violating the Establishment Clause does not support a presumption that religious hostility motivates the decision to continue the religious school exclusion. Locke recognizes that states have some leeway to choose not to fund religious education even if a choice to fund religious education indirectly might not violate the Establishment Clause.
C. Equal Protection and Rational Basis Analysis
[¶ 56] After Zelman, state payments for education that reach a religious school indirectly as the result of a free and independent choice of parents would not violate the Establishment Clause. This Court in Bagley and the First Circuit in Strout suggested that if the religious school exclusion were based on an erroneous understanding of the Establishment Clause, the statute could violate Equal Protection. Bagley,
[¶ 57] The State proffers several justifications for section 2951(2), including Establishment Clause concerns not necessarily governed by Zelman, such as excessive entanglement between religion and state. Additional legitimate interests that the State offers include concerns about maintaining diversity within the public schools, and avoiding involvement in discrimination in admissions and hiring by religious schools.
[¶ 58] The parents argue that the State is barred from offering additional, hypothetical rationales for the statute because the actual rationale is known, citing Weinberger v. Wiesenfeld,
[¶ 59] A court undertaking an excessive entanglement analysis ordinarily does so in the context of reviewing a state program that provides aid to religious institutions. Bagley,
*961 [¶ 60] The record in this case is sparse as to the nature of the courses taught at the religious schools and their religious practices. Because the religious schools are not participating in this case, those issues are not central to our decision-making. However, it is possible to envision that there may be conflicts between state curriculum, record keeping and anti-discrimination requirements and religious teachings and religious practices in some schools. These conflicts could result in significant entanglement of State education officials in religious matters if religious schools were to begin to receive public tuition funds and the State moves to enforce its various compliance requirements on the religious schools. This concern to avoid excessive entanglements provides a rational basis to maintain the funding limitation in section 2951(2). Parental choice of the school does not sever the religion-state connection when payment is made by a public entity to the religious school and that payment subjects a school's educational and religious practices to state regulation.
VI. CONCLUSION
[¶ 61] After Zelman, the State may be permitted to pass a statute authorizing some form of tuition payments to religious schools, but Locke and Eulitt hold that it is not compelled to do so. Section 2951(2) falls within the "play in the joints" between the two religion clauses. Section 2951(2) neither improperly infringes on the free exercise of religion, nor violates the Establishment Clause. With respect to the parents' claim of religious discrimination based on the Equal Protection Clause, the statute does not infringe upon the fundamental right to free exercise of religion in a constitutionally significant manner. The remaining claims of religious discrimination are subject only to rational basis scrutiny. The State has supplied a reasonably conceivable set of facts that establish a rational relationship between the statute and a legitimate government interest in avoiding excessive entanglements with religion.
The entry is:
Judgment affirmed.
LEVY, J., with whom SAUFLEY, C.J., joins, concurring.
[¶ 62] In addition to the constitutional issues addressed by the Court, this case presents an important question of law concerning municipal liability that remains unaddressed.
[¶ 63] The nine municipal defendants consist of three Maine communitiesDurham, Minot, and Raymondand their school departments and school superintendents. In the early stages of this proceeding, the Superior Court dismissed the action as to eight of the nine defendants[18] because it concluded, in a reasoned decision applying Monell v. Department of Social Services of City of New York,
[¶ 64] The plaintiffs' assertion that school districts and their superintendents may be found liable for failing to disobey an act of the Legislature presents a question of great public interest, thus qualifying as one of our recognized exceptions to the mootness doctrine. See Ten Voters of City of Biddeford v. City of Biddeford,
[¶ 65] The purpose of this lawsuit is to test the constitutionality of Maine's tuition payment law, 20-A M.R.S. § 2951, a statute administered by the Maine Department of Education. I would reach the municipal liability issue that it presents because our resolution of that issue will provide guidance as to whether local governments and their officials should be made defendants in, and compelled to incur the expenses arising from, lawsuits that do not implicate their policies or discretionary acts.
CLIFFORD, J., dissenting.
[¶ 66] Title 20-A M.R.S. § 5204(4) (2005) allows parents residing in towns that lack public school systems to choose the schools their children attend by providing for tuition to be paid to public or private schools in other municipalities. Prior to a 1983 amendment to Maine's tuition statute, section 5204(4) was neutral toward religion, and families residing in towns without their own public schools enjoyed a unique opportunity to send their children to private schools, including sectarian schools. The system worked very well, and offered parents broad choices in the education of their children, choices otherwise enjoyed only by families of some economic means.[19]
[¶ 67] The tuition statute's neutrality toward religion ended in the early 1980s, however, when 20-A M.R.S. § 2951(2) (2005) was enacted to limit those private schools approved for the receipt of public tuition funds to "nonsectarian school[s] in accordance with the First Amendment of the United States Constitution." P.L. 1981, ch. 693, § 5. This amendment denied parents the opportunity to send their children to sectarian schools within the program established by section 5204(4). The amendment was enacted following an opinion issued by the Attorney General, and *963 was justified solely because it was thought at that time to be required by the Establishment Clause of the First Amendment to the United States Constitution. The amendment substantially altered a unique program that benefited Maine families.
[¶ 68] In Bagley v. Raymond School Department, the plaintiffs challenged the constitutionality of section 2951(2).
[t]he State offers only one justification for the statutean effort to comply with the Establishment Clause. Accordingly, it makes little difference whether we classify the level of scrutiny as strict or requiring only a rational basis. If the State's justification is based on an erroneous understanding of the Establishment Clause, its justification will not withstand any level of scrutiny.
Id. ¶ 32,
[¶ 69] Subsequent to this Court's decision in Bagley, however, the United States Supreme Court concluded that tuition payments by a municipality that enable families to send their children to sectarian schools do not violate the Establishment Clause of the United States Constitution as long as the statutory program pursuant to which the payment is made is neutral as to religion, and the choice of the religious school is the free and independent decision of the parents. Zelman v. Simmons-Harris,
[¶ 70] Relying on Locke, a United States Supreme Court case decided subsequent to Zelman, this Court concludes that, although it is clear that Maine could repeal section 2951(2) and again make section 5204(4) neutral as to religion, as it once was, and could reinstate tuition aid to parents who reside in towns without public schools and who choose to send their children to sectarian schools without violating the Establishment Clause, the elimination of the discriminatory provision of section 2951(2) is not required.
[¶ 71] Because this Court reads Locke as authorizing the explicit discrimination of section 2951(2), it applies a rational basis test to the equal protection claim of the plaintiffs, and accepts the State's argument that there is a rational basis to justify the unequal treatment of parents who desire to send their children to sectarian schools expressed in section 2951. Because, in my view, this Court reads Locke far more broadly than it should, and applies the wrong test to determine whether section 2951(2) violates the Equal Protection Clause, I respectfully dissent.
[¶ 72] The State of Washington maintains a post-secondary scholarship program for academically gifted students. The Supreme Court concluded in Locke that the State of Washington could refuse to provide scholarship funds pursuant to that scholarship program to students who were pursuing training for the ministry without violating the Free Exercise Clause *964 of the United States Constitution. Locke,
[¶ 73] The decision in Locke upheld the prohibition of scholarship aid in unique circumstances not applicable to the present appeal. The specific scholarship at issue in Locke was for the study of the ministry, referred to by the Supreme Court as "training for religious professions," and as a "distinct category of instruction." Id. at 721,
[¶ 74] Contrary to the training for church ministry that was at issue in Locke, for which the provision of scholarship aid the Supreme Court held could be prohibited, section 5204(4) provides tuition aid for primary and secondary education, education that is compulsory for all students in Maine, and in no way constitutes the "training for religious professions" that uniquely limited the Supreme Court's holding in Locke.
[¶ 75] Moreover, in the State of Washington, the prohibition on funding for education for the ministry is grounded in the State's Constitution. Maine has no such constitutional prohibition. Indeed, until the early 1980s and prior to the existence of section 2951(2), which was enacted to comply with the then current understanding of the Establishment Clause of the First Amendment, section 5204 allowed tuition payments to parents who chose to send their children to sectarian schools.[20] Although Locke states that there is some "play in the joints" between what is permitted by the Establishment Clause and what is required by the Free Exercise Clause of the United States Constitution, Locke,
[¶ 76] In my view, section 2951(2) results in a denial of equal protection of the law pursuant to the Maine and Federal Constitutions. See U.S. CONST. amend. XIV, § 1; ME. CONST. art. 1, § 6-A. The disparate treatment mandated by section 2951(2) is based on religion, a most fundamental right, and requires that we apply the strict scrutiny standard to determine the legitimacy of the State's action. Bagley,
[¶ 77] Further, even if Locke is read more broadly than its language would seem to allow, and a rational relationship test is applied to the equal protection interests of the parents, there is no legitimate rationale that should be considered by the Court to justify the discrimination manifested in section 2951(2). The enactment of section 2951(2) was based solely on the conclusion that it was necessary to ensure compliance with the Establishment Clause. That was the only reason advanced by the State in Bagley to justify the discrimination in section 2951(2). Bagley,
[¶ 78] I agree that the State is not required to provide tuition aid to parents who wish to send their children to non-public schools. If it does provide such aid, however, it should not be able to exclude private schools that also happen to have a religious affiliation. In my view, that is blatant discrimination that reflects not a neutrality toward religion, but rather an animus against religion. As was said in Bagley, "[i]f the State's justification [for the disparate treatment] is based on an erroneous understanding of the Establishment Clause, its justification will not withstand any level of scrutiny." Id. ¶ 32,
[¶ 79] I would vacate the judgment of the Superior Court.
NOTES
Notes
[*] Justice Paul L. Rudman sat at the first oral argument and participated in the initial conference, but retired before this opinion was certified.
Although not available at the second oral argument, Justice Calkins participated in this opinion. See M.R.App. P. 12(a) (stating that a "qualified justice may participate in a decision even though not present at oral argument").
[1] The plaintiff parents in this case assert only federal constitutional claims.
[2] Title 20-A M.R.S. § 2701 (2005) applies to children in any grade. Only high school is at issue in this case.
[3] Pursuant to 20-A M.R.S. § 4722 (2005), secondary school curriculum requirements include English, social studies, mathematics, science (including a laboratory science) and fine arts.
[4] The parents in Bagley also asserted claims under the related provisions of the Maine Constitution. We addressed those claims "with the understanding that the rights guaranteed by the United States Constitution and the Maine Constitution are coextensive." Bagley v. Raymond Sch. Dep't,
[5] As this action has been pending for some time, it is likely that the school attendance of some of the individuals who were attending high school when suit was filed has changed. However, there is no question that the issue presented for decision by this action is a question of great public concern and an issue that repeatedly arises for parents of children attending high school in communities that tuition their high school students to other public and private high schools. Thus, this case appropriately proceeds under generally recognized exceptions to the mootness doctrine. See Consumers for Affordable Health Care, Inc. v. Superintendent of Ins.,
[6] The dates referenced in this opinion reflect the most current information available from the Superior Court record.
[7] A school is pervasively sectarian when a "substantial portion of its functions are subsumed in the religious mission." Hunt v. McNair,
[8] The religion clauses of the First Amendment are applicable to the states. Cantwell v. Conn.,
[9] In Agostini v. Felton,
[10] For example, the United States Supreme Court has held that the Establishment Clause prohibits government action that creates a denominational preference among religions, Larson v. Valente,
[11] Article I, § 6-A of the Maine Constitution states: "No person shall be deprived of life, liberty or property without due process of law, nor be denied the equal protection of the laws, nor be denied the enjoyment of that person's civil rights or be discriminated against in the exercise thereof."
[12] See Agostini,
[13] State constitutional provisions, such as the one in Locke, that expressly forbid aid to religious schools to different degrees, may continue to present a barrier for state legislatures seeking to expand options for publicly funded education to religious schools. Krista Kafer, School Choice in 2003: An Old Concept Gains New Life, 59 N.Y.U. ANN. SURV. AM. L. 439, 450-51 (2003). Many of these provisions, known as "Blaine Amendments" for the Maine Senator who unsuccessfully championed a similar proposed amendment to the United States Constitution, have their roots in conflicts between supporters of public schools and supporters of religious, often Catholic, schools in the late nineteenth century. See Bagley,
[14] The result in Aguilar was changed by Agostini,
[15] See n. 12 and opinions cited therein.
[16] Simmons-Harris v. Zelman,
[17] In this case, the parents have indicated that they are asserting only their rights, and that they are not attempting to assert rights of religious schools. Thus, no issue exists as to whether the parents have standing to assert alleged discrimination against the schools. In Bagley, because the case presented "an important issue worthy of evaluation," we reconfigured the parents' equal protection claim from one asserting the rights of the schools to the argument "that the parents' lack of opportunity to have the State pay the tuition for their children to attend a private religious school results in their own disparate treatment on the basis of their religion."
In Eulitt v. State of Maine,
[18] The Superior Court (Cumberland County, Mills, C.J.) had previously dismissed the claims against the ninth municipal defendant, the Town of Minot.
[19] Persuasive literature exists to indicate that school choice programs not only provide a good education to students, but also that they are cost effective as well. See, e.g., Brad P. Bender, Comment, "Allegiance to Our Children": The School Choice Debate in the Commonwealth of Pennsylvania, 104 DICK. L. REV. 165 (1999); Mark J. Beutler, Public Funding of Sectarian Education: Establishment and Free Exercise Clause Implications, 2 GEO. MASON IND. L. REV. 7 (1993); Scott Fenton, Comment, School Voucher Programs: An Idea Whose Time Has Arrived, 26 CAP. U.L. REV. 645 (1997); Krista Kafer, Article, School Choice in 2003: An Old Concept Gains New Life, 59 N.Y.U. ANN. SURV. AM. L. 439 (2003); James A. Peyser, SYMPOSIUM: Issues in Education Law and PolicySchool Choice: When, Not If, 35 B.C. L. REV. 619 (1994).
[20] See Frank Heller, Lessons from Maine: Education Vouchers for Students Since 1873, CATO INST. BRIEFING PAPERS (Cato Inst.), Sept. 10, 2001.