Robert BAGLEY et al. v. RAYMOND SCHOOL DEPARTMENT et al.
1999 ME 60
Supreme Judicial Court of Maine.
Decided April 23, 1999.
728 A.2d 127
Argued Nov. 2, 1998.
[¶ 11] Plaintiffs’ counsel filed an affidavit stating the hourly rate charged, the total amount billed to his clients, the services performed, and that the rate was reasonable for an attorney in the community with similar experience performing similar work. Faced with this affidavit, the court did not exceed the bounds of its discretion in its determination of a reasonable fee. Cf. Hebert v. Hebert, 475 A.2d 422, 426 (Me.1984).
[¶ 12] Finally, contrary to the Lydens’ contention, there was ample evidence, expert and otherwise, to support the court‘s conclusion that the Lydens had intentionally trespassed by building a fence within and down the length of Beach Road.
The entry is:
Judgments affirmed.
Michael E. Saucier (orally), Thompson & Bowie, Portland, for Raymond School Department.
Andrew Ketterer, Attorney General, Peter J. Brann, State Solicitor, (orally), Augusta, for State defendants.
Donald F. Fontaine, Fontaine & Beal, P.A., Portland, Robert H. Chanin, John M. West, Page Kennedy, Bredhoff & Kaiser, PLLC, Washington, DC, for Timothy Humphrey et al.
Barbara G. Shaw, Marcus Grygiel & Clegg, P.A., Portland, Jeffrey A. Thaler, Bernstein, Shur, Sawyer & Nelson, Portland, for Maine Civil Liberties Union.
David G. Webbert, Johnson & Webbert, LLP, Augusta, Nathan Lewin, Richard W. Garnett, Miller, Cassidy, Larroca & Lewin, LLP, Washington, DC, Dennis Raps, National Jewish Commission on Law and Public Affairs, New York City, for amici curiae National Jewish Commission on Law and Public Affairs, Agudath Harabonim of the United States and Canada, Agudath Israel of America, Union of Orthodox Jewish Congregations of America, National Council of Young Israel, Rabbinical Alliance of America, Rabbinical Council of America, and Torah Umesorah—National Society of Hebrew Day Schools.
David A. Soley, Bernstein, Shur, Sawyer & Nelson, Portland, Steven K. Green, Ayesha N. Khan, Americans United for Separation of Church and State, Washington, DC, Jeffrey P. Sinesky, American Jewish Committee, New York City, Elizabeth J. Coleman, Steven M. Freeman, Lauren A. Levin, Anti-Defamation League of B‘nai B‘rith, New York City, Elliott M. Mincberg, Judith E. Schaeffer, People for the American Way Foundation, Washington, DC, for amici curiae Americans United for Separation of Church and State, American Jewish Committee, Anti-Defamation League of B‘nai B‘rith, People for the American Way Foundation.
Michael H. Hill, Monaghan, Leahy, Hochadel & Libby, Portland, Kevin J. Hasson, Eric W. Treene, The Becket Fund for Religious Liberty, Washington, DC, Daniel E. Troy, Alex M. Azar II, Wiley, Rein & Fielding, Washington, DC, for amici curiae The Becket Fund for Religious Liberty.
SAUFLEY, J.
[¶ 1] We are called upon in this case to determine whether Maine‘s education tuition program, which explicitly excludes religious schools from receipt of state funds, violates any section of the United States or Maine Constitution. Because we conclude that it does not, we affirm the judgment of the Superior Court (Cumberland County, Mills, J.).
I. BACKGROUND
[¶ 2] The material facts are undisputed. Maine requires all school districts to provide education to its residents from kindergarten through twelfth grade. See
[¶ 3] The tuition rate for each school is approximately equal to the sum of the school‘s allowable expenditures, divided by the number of students at a particular school, adjusted by certain factors, and capped by a statewide average per public secondary student cost. See
[¶ 4] Approximately half of the school districts in Maine satisfy their obligation by operating public elementary and secondary schools. The other half satisfy their obligation either wholly through Maine‘s tuition program, or by operating some schools, usually elementary, and paying tuition for students to attend only those schools which the school districts do not operate. Nearly 14,000 students attend public and approved private schools under the tuition program and approximately $70 million in public funds is expended each year by the Maine Department of Education and local school districts on tuition for students to attend these schools.
[¶ 5] Prior to 1981, parents were able to select religious schools for participation in Maine‘s tuition program. In 1981, however, the Legislature made religious schools ineligible for the program by amending the statute to provide that “[a] private secondary school may be approved for the receipt of public funds for tuition purposes only if it ... [i]s a nonsectarian school in accordance with the First Amendment of the United States Constitution.”
[¶ 6] The Raymond School District (“Raymond“) does not have a high school and instead provides secondary education through Maine‘s tuition program. Most of the high school students in Raymond attend public school in Windham, Westbrook, and Gray-New Gloucester. Some, however, attend approved private schools, including North Yarmouth Academy, Hebron Academy, and Waynflete School.3
[¶ 7] Five families from the town of Raymond, Robert and Cynthia Bagley; Gary and Cynthia St. Pierre; Dennis and Patricia Cole; Ricky and Mary Thornton; and Jack and Stacie Fitch (referred to herein collectively as the “parents“), enrolled their sons at Cheverus High School, an all-male, private Roman Catholic college preparatory school, located in Portland and operated by the Society of Jesus, a religious order. There is no dispute that Cheverus High School is a religious school, specifically, a “pervasively sectarian school,” educating its students in both secular and religious subjects.4 Each of the boys attended public elementary school and, through the tuition program, public middle schools. None of the children attended Catholic schools during their primary education.
[¶ 8] The Coles, Thorntons, and Fitchs are either not Catholics or are not practicing Catholics, and all sent their sons to Cheverus High School primarily for academic and social reasons. The St. Pierres initially indicated that religion was a factor in their decision to send their son to Cheverus but later explained that the Cheverus hockey program and its academic reputation were the determining factors in their selection. The Bagleys, however, allege that religion was a principle motivation for choosing Cheverus, and Cynthia Bagley testified that it was her own “personal faith choice.”
[¶ 9] After enrolling their sons, the parents requested that Raymond pay their sons’ tuition at Cheverus. Raymond denied their requests, responding that “the Raymond School Department cannot pay tuition costs for sectarian schools,” because they are not approved schools pursuant to
[¶ 10] Without objection by the parents, a group of Raymond taxpayers and the Maine Civil Liberties Union intervened as defendants. Raymond then filed a motion to dismiss, which the trial court granted, holding that Raymond could not be liable under
II. ANALYTICAL FRAMEWORK
[¶ 11] This appeal presents a unique question, requiring that we articulate with preci-
[¶ 12] Nationally, state legislatures have recently begun undertaking efforts to allow parents more flexibility and increased options in educational decisions through vouchers, tuition reimbursement programs, or tax relief programs.7 Several of those programs allow participation by parents with children in religious schools. Maine‘s tuition pro-
[¶ 13] Addressing the constitutionality of the statute, the parties recognize that “[w]e have traditionally exercised great restraint when asked to interpret our state constitution to afford greater protections than those recognized under the federal constitution,” State v. Buzzell, 617 A.2d 1016, 1018 n. 4 (Me.1992), and do not contend that the Maine Constitution affords greater protection than the United Stаtes Constitution. See Blount v. Department of Educ. and Cultural Serv., 551 A.2d 1377, 1385 (Me.1988); School Admin. Dist. No. 1 v. Commissioner, Dept. of Educ., 659 A.2d 854, 857 (Me.1995). We therefore address the parents’ claims with the understanding that the rights guaranteed by the United States Constitution and the Maine Constitution are coextensive.8
[¶ 15] Our analysis is made in three parts. First, we will determine whether the tuition statute violates the Free Exercise Clause of the First Amendment. Next, we will determine whether the statute as it now exists violates the Establishment Clause of the First Amendment. Finally, we will consider whether the explicit exclusion of religious schools from the tuition program violates the Equal Protection Clause of the Fourteenth Amendment. Because the only basis asserted by the State for its disparate treatment of religious schools is its understanding that the statute in existence prior to the exclusion violated the Establishment Clause, in undertaking the Equal Protection analysis, we will review in greater detail the recent changes in Establishment Clause jurisprudence.
III. FREE EXERCISE CLAUSE
[¶ 16] The parents first contend that Maine‘s tuition program violates the Free Exercise Clause by burdening their fundamental right to send their children to religious schools. See Meyer v. Nebraska, 262 U.S. 390, 43, 43 S.Ct. 625, 67 L.Ed. 1042 (1923). The Free Exercisе Clause of the First Amendment provides that “Congress shall make no law ... prohibiting the free exercise [of religion]....”
[¶ 18] We recognize that courts should be hesitant to delve into the asserted “centrality” of a religious practice, and we would do so only with great caution.12 Here, however, we are not called upon to undertake that analysis. Assuming arguendo that the parents have raised disputes of fact regarding matters central to their religious beliefs, we could not find that any substantial burden has been imposed on the free exercise of those beliefs. “It is well established that there is no substantial burden placed on an individual‘s free exercise of religion where a law or policy merely ‘operates so as to make the practice of [the individual‘s] religious beliefs more expensive.‘” Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 171 (4th Cir.1995), cert. denied, 516 U.S. 1046, 116 S.Ct. 706, 133 L.Ed.2d 661 (1996) (quoting Braunfeld v. Brown, 366 U.S. 599, 605, 81 S.Ct. 1144, 6 L.Ed.2d 563 (1961)). The concurring opinion of Justice Douglas in Sherbert v. Verner, 374 U.S. 398, 83 S.Ct. 1790, 10 L.Ed.2d 965 (1963) best articulates this concept.
The fact that government cannot exact from [a citizen] a surrender of one iota of [her] religious scruples does not, of course, mean that [she] can demand of government a sum of money, the better to exercise them. For the Free Exercise Clause is written in terms of what the government cannot do to the individual, not in terms of what the individual can exact from the
government.13
Id. at 412, 83 S.Ct. 1790 (Douglas, J., concurring). Section 2591(2) does not prevent the parents from sending their sons to Cheverus. While they will not receive tuition assistance if they choose to do so, they are no more impaired in their efforts to seek a religious education for their sons than are parents of children in school districts that provide only a free nonreligious education in public schools.
[¶ 19] In sum, the Free Exercise Clause is “designed to prevent the government from impermissibly burdening an individual‘s free exercise of religion, not to allow an individual to exact special treatment from the government.” Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 702 (10th Cir.1998) (citing Snyder v. Murray City Corp., 124 F.3d 1349, 1353 (10th Cir.1997)); Braunfeld, 366 U.S. at 605, 81 S.Ct. 1144 (a statute that makes adherence to religious beliefs “more expensive” does not burden free exercise); McCarthy v. Hornbeck, 590 F.Supp. 936, 945-46 (D.Md.1984) (Free Exercise Clause does not mandate that the State subsidize a person‘s constitutional right to send their children to church-related schools).
[¶ 20] Because we conclude that the parents have failed to generate a material fact upon which a factfinder could conclude that section 2951(2) places a substantial burden on the free exercise of their religion, we conclude that the exclusion of religious schools from the tuition program does not violate the Free Exercise Clause of the First Amendment.
IV. ESTABLISHMENT CLAUSE
[¶ 21] The parents next contend that the exclusion of religious schools from Maine‘s tuition program violates the Establishment Clause.14 Their reliance on the Establishment Clause in this context is misplaced. The purpose of the Establishment Clause is reflected in the often repeated words of Thomas Jefferson: to build “a wall of separation between Church and State.” Letter from Thomas Jefferson Replying to Public Address from Committee of the Danbury Baptist Assn. of Connecticut (Jan. 1, 1802) in 3 THE WRITINGS OF THOMAS JEFFERSON 8-9 (H.A. Washington ed., 1861); see also Reynolds v. United States, 98 U.S. 145, 164, 25 L.Ed. 244 (1878). The dual concepts of the First Amendment‘s references to religion are meant to address opposite concerns. The Free Exercise Clause addresses the “negative,” it prevents the government from interfering with religious practice, while the Establishment Clause addresses the “affirmative,” it prevents the government from sponsoring or establishing a religion. See Watson v. Jones, 13 Wall. 679, 80 U.S. 679, 730, 20 L.Ed. 666 (1871) (“The structure of our government has, for the preservation of civil liberty, rescued the temporal institutions from religious interference. On the other hand, it has secured religious liberty from the invasion of the civil authority.“).
[¶ 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.15
IV. EQUAL PROTECTION
A. The Underpinnings of Equal Protection Concepts
[¶ 23] The parents finally contend that
[¶ 24] The parents present a somewhat unusual Equal Protection argument. They do not assert that, based on their religion, they have been denied access to education for their children that is available to others.16 Indeed, the parents have the right to tuition payments for the same range of schools available to all parents in Raymond and have a broader range of options available to them than parents in towns with a public high school. Rather, the parents assert that because they would choose a school that is not approved for the tuition program, and because that sсhool is excluded due to its religious nature, they have been denied equal protection of the laws based on “religion.”
[¶ 25] The difficulty in framing the parents’ contention as an Equal Protection claim is highlighted by their concession that the State is not required, in towns that have public high schools, to pay for a high school education at a religious school. They further concede that if the State were to provide tuition in towns such as Raymond only for other public schools, they would have no cause of action. Their argument turns therefore on the fact that the State chooses to include private schools in the tuition program but excludes private religious schools. In essence, the parents claim that Cheverus is treated differently because it is a religious school, not that the parents are treated differently because they are Catholic. Ordinarily, the Equal Protection claim here would be asserted, not by potential clients of the excluded institution, but by the school itself.17 Cheverus, however, is not a party to this action.
[¶ 26] Nonetheless, we conclude that the parents present an important issue worthy of evaluation. For purposes of this analysis, therefore, we will assess the parents’ Equal Protection argument assuming arguendo 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.
B. The Level of Scrutiny
[¶ 27] Because the parents assert that they have been denied the equal protection of the laws, we must first address the
[¶ 28] In contrast, if a challenged statute does not involve either a fundamental right or a suspect class, “different treatment accorded to similarly situated persons need only be rationally related to a legitimate state interest.” School Admin. Dist. No. 1, 659 A.2d at 857. When a statute is reviewed under the rational basis standard, it bears a strong presumption of validity. See id.
[¶ 29] The tuition statute,
[¶ 30] Notwithstanding the obvious disparate treatment of religious schools under Maine‘s tuition statute, the defendants advocate the use of the rational basis standard. The defendants first contend that we must view Equal Protection claims, when accompanied with a Free Exercise claim, as a “reprise” of the Free Exercise argument. See Blount v. Department of Educ. and Cultural Servs., 551 A.2d 1377, 1385-86 (Me.1988) (holding that the State‘s prior approval of educational choices for children, including home-schooling, did not violate Free Exercise or Equal Protection). Reliance on Blount, however, is misplaced. In Blount, we characterized the Equal Protection claim as a “reprise” of the Free Exercise claim because, based on the facts, review of the Equal Protection claim dictated rational basis scrutiny. The statute “[h]aving already survived strict scrutiny under the First Amendment” could reаdily pass rational basis scrutiny. See id. Here, however, we do not reach an analysis of the statute under the Free Exercise compelling interest standard. Thus, an Equal Protection analysis is not redundant. Furthermore, nothing we stated in Blount eliminated the possibility that, in some circumstances, Equal Protection may provide more protection than the Free Exercise Clause. Blount is therefore not applicable to the present scenario.
[¶ 31] Second, the defendants contend that there is no basis for an Equal Protection challenge based upon school funding. Here they rely on Norwood v. Harrison, 413 U.S. 455, 93 S.Ct. 2804, 37 L.Ed.2d 723 (1973), where the Court addressed such a challenge in another context.
It has never been held that if private schools are not given some share of public funds allocated for education that such schools are isolated into a classification violative of the Equal Protection Clause. It is one thing to say that a State may not prohibit the maintenance of private schools and quite another to say that such schools must, as a matter of equal protection, receive state aid.
Id. at 462, 93 S.Ct. 2804.18 The general proposition set forth in Norwood, however, does not reach the more narrow question presented in the matter before us. The question is not whether the State must support religious schools in general. The question is whether, having decided to create a tuition program that allows parents to choose private schools, the State may exclude private religious schools from receipt of state funds.
[¶ 32] Thus, the defendants’ contention that rational basis scrutiny applies is incorrect. Ultimately, however, the debate
C. Application of the Establishment Clause to the Tuition Program
[¶ 33] Because classification on the basis of religion is distinct as the only classification which carries with it a converse prohibition against government involvement or entanglement, we must address the balance between the competing constitutional mandates of the First and Fourteenth Amendments. 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, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981) (agreeing that compliance with constitutional obligations “may be characterized as compelling.“)
1. Development of Establishment Clause Jurisprudence
[¶ 34] We look first to the history of the religious exclusion contained in
[¶ 35] The Legislature enacted the exclusion in 1981 in direct response to developments in Establishment Clause jurisprudence during the 1970‘s. Placing those developments in a historical context demonstrates that the Legislature had little choice but to adopt the exclusion if it chose to continue its tuition program.
[¶ 36] The Supreme Court‘s evolving treatment of the Establishment Clause has been a study in the changing forces of our society. Although much has been written by eminent scholars on the intertwining of church and state through the decades, our understanding of current decisional doctrine in this mutable area best begins with Everson v. Board of Educ., 330 U.S. 1, 67 S.Ct. 504, 91 L.Ed. 711 (1947). There, a New Jersey statute authorized reimbursement to parents for the expenses of transporting children to school on public busses, including parents of children riding the busses to religious schools. See id. at 4-5, 67 S.Ct. 504. The Supreme Court found no violation of the Establishment Clause. Writing for the Court, Justice Black wrote that “[t]he First Amendment has erected a wall between church and state. That wall must be kept high and impregnable. We could not approve the slightest breach. New Jersey has not breached it here.” id. at 18, 67 S.Ct. 504. Accordingly, the Court refused to strike down programs that provided transportation to religious as well as nonsecular schools.
[¶ 37] Everson was followed twenty years later by Board of Educ. v. Allen, 392 U.S. 236, 88 S.Ct. 1923, 20 L.Ed.2d 1060 (1968). In Allen, the Court similarly upheld a New
[¶ 38] Beginning in the early 1970‘s, however, the Court evidenced a significant shift in its focus, from the public purpose of the program under scrutiny, to the possible benefits to the religious institutions at issue. In 1971, the Court acknowledged the difficulties it had encountered in attempting to delineate the point at which a seemingly neutral program crosses the line into a violation of the Establishment Clause: “[c]andor compels acknowledgement ... that we can only dimly perceive the lines of demarcation in this extraordinarily sensitive area of constitutional law.” Lemon v. Kurtzman, 403 U.S. 602, 612, 91 S.Ct. 2105, 29 L.Ed.2d 745 (1971). To bring greater clarity to that demarcation, the Court announced a three-part test which would assist courts in drawing lines to protect against “the three main evils against which the Establishment Clause was intended to afford protection: ‘sponsorship, financial support, and active involvement of the sovereign in religious activities.‘” Id. (quoting Walz v. Tax Commission, 397 U.S. 664, 668, 90 S.Ct. 1409, 25 L.Ed.2d 697 (1970)).
[¶ 39] The “Lemon Test” comprises a three-pronged analysis, “gleaned” from prior cases, requiring that: “[f]irst, the statute must have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion ... and finally, the statute must not foster ‘an excessive government entanglement with religion.‘” Id. at 612-13, 91 S.Ct. 2105 (citations omitted). Any statute that ran afoul of any one of those tenets would be held to violate the Establishment Clause.
[¶ 40] In several cases following Lemon, the Court struck down, in whole or in part, state programs designed to assist parents with educational costs where the programs at issue allowed that assistance to benefit religious schools. During this period, the Court invalidated New York tax laws that provided direct money grants to qualifying nonpublic schools for maintenance and repair of facilities and equipment; a tuition reimbursement plan for parents of children attending nonpublic schools; and tax relief to parents failing to qualify for tuition reimbursement. See Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955, 37 L.Ed.2d 948 (1973). It then struck down a Pennsylvania law that provided for loans of educational materials and equipment directly to religious schools, see Meek v. Pittenger, 421 U.S. 349, 95 S.Ct. 1753, 44 L.Ed.2d 217 (1975), and invalidated a program that placed public school teachers in religious school classrooms for certain classes, see School Dist. v. Ball, 473 U.S. 373, 105 S.Ct. 3216, 87 L.Ed.2d 267 (1985).
[¶ 41] In his opinion regarding the constitutionality of the tuition program, the Attorney General relied heavily on Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. 756, 93 S.Ct. 2955 (1973) in determining that including religious schools in the tuition system violated the Establishment Clause. The Nyquist Court found that although the programs had secular purposes in protecting the health and safety of private school students, they failed the “effect” prong of the Lemon test because the vast majority of the money went to religious institutions. See id. at 775-83, 93 S.Ct. 2955.20 The Court also held that “[i]n the absence of an effective means of guaranteeing that the state aid derived from public funds will be used exclusively for secular, neutral, and nonideological purposes, it is clear from our cases that direct aid in whatever form is invalid.” Id. at 780, 93 S.Ct. 2955 (emphasis added). Furthermore, the Court concluded
[¶ 42] Application of the concepts set forth in Nyquist led to the inevitable conclusion that Maine‘s all encompassing tuition program violated the Establishment Clause. Before the enactment of the exclusion, the tuition program required school administrative districts to pay tuition directly to the private school—precisely the “direct aid” prohibited by Nyquist. If the tuition was not paid by the district within 30 days of the billing date, the State paid the bill and deducted that amount from the state school subsidy to the school administrative unit owing tuition. See
2. Changes in Establishment Clause Jurisprudence Since 1981
[¶ 43] The parents urge us to conclude, however, that recent changes in the Supreme Court‘s analysis of the Establishment Clause have resulted in the elimination of the necessity for the religious exclusion. There is no question that, between 1981 and the present, the “lines of demarcation” in Establishment Clause analysis have shifted once again.22
[¶ 44] The changes can be seen both in the tools used by the Court to analyze alleged Establishment Clause violations and in the nature of governmental involvement in religious schools that the Court has become willing to tolerate.
[¶ 45] We first examine the changes in the analytical tool utilized by the Supreme Court in these cases. The Lemon Test, announced in 1971, was applied to all school cases in the 1980‘s. The application of the Lemon Test, however, has been fluid at best. In Nyquist, the Court held that “there is no single constitutional caliper” for determining whether a state action violates the Establishment Clause and that tests such as those announced in Lemon should be “viewed as guidelines.” 413 U.S. at 773 n. 31, 93 S.Ct. 2955 (citations omitted). In Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983), the Court fоund the Lemon test to be “no more than a helpful signpost.” Id. at 394, 103 S.Ct. 3062 (citations omitted). And in Lynch v. Donnelly, 465 U.S. 668, 104 S.Ct. 1355, 79 L.Ed.2d 604 (1984), it noted that the Lemon Test has never been binding on the Supreme Court. See id. at 679, 104 S.Ct. 1355.
[¶ 47] We turn then to the recent decisions in which the Supreme Court has reviewed other school aid programs for Establishment Clause compliance. Two decisions bookend those changes: Mueller v. Allen, 463 U.S. 388, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983) and Agostini v. Felton, 521 U.S. 203, 117 S.Ct. 1997, 138 L.Ed.2d 391. In Mueller, the Court upheld a Minnesota law allowing taxpayers, in computing their state income tax, to deduct expenses incurred in providing for the education of their children, including tuition, transportation, and textbooks, without regard to the secular or religious nature of the school at issue. See 463 U.S. at 390, 103 S.Ct. 3062. The Court accepted the State‘s secular purpose, stating that “governmental assistance programs have consistently survived this inquiry even when they have run afoul of other aspects of the Lemon framework.” Id. at 394, 103 S.Ct. 3062. The Mueller Court distinguished Nyquist and relied upon several factors in finding no impermissible effect of advancing religions: the tax deduction is one of several available under Minnesota law; the deduction is available for only educational expenses, not for religious expenses; the tax is available to all parents; and the aid is a benefit to and is channeled through individual parents, not the schools. See id. at 396-99, 103 S.Ct. 3062. The Court held that “[t]he historical purposes of the [Establishment] [C]lause simply do not encompass the sort of attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit at issue in this case.” Id. at 400, 103 S.Ct. 3062.
[¶ 48] In the decade and a half that followed Mueller, the Court inched further away from its more restrictive line-drawing. In Witters v. Washington Dep‘t of Servs. for the Blind, 474 U.S. 481, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986), the Court again acknowledged that direct cash subsidies to a religious school would not be approved, but held that “the Establishment Clause is not violated every time money previously in the possession of a State is conveyed to a religious institution.” Id. at 486, 106 S.Ct. 748. It determined that a single grant of aid to a blind college student for his training to become a pastor did not violate the Clause, noting that no other person had ever sought to use state grant money for that purpose and that the grant monies were provided directly to the student, not to the religious college. See id. at 488, 106 S.Ct. 748. Then in Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993), the Court determined that allowing a school district to provide a sign-language interpreter to accompany a student to his classes at a Catholic High School did not violate the Establishment Clause. Distinguishing those facts from cases involving direct cash subsidies to religious schools, the Court noted that “no funds traceable to the government ever find their way into sectarian schools’ coffers.” Id. at 10, 113 S.Ct. 2462.
[¶ 49] Finally, in Agostini, the Court explicitly overruled a prior decision in which it had concluded that the Establishment Clause prevented public school teachers from assisting underprivileged children in religious schools. See Aguilar v. Felton, 473 U.S. 402, 105 S.Ct. 3232, 87 L.Ed.2d 290 (1985).23 The
3. School Aid Programs in Other States
[¶ 51] In recognition of the changes in the Supreme Court‘s Establishment Clause jurisprudence, several states have enacted statutes aimed at providing financial assistance to parents of students attending religiously affiliated schools. For example, in 1995, the Ohio Legislature enacted a statute that provided need-based scholarships to students in Cleveland that may be used in public or private schools. See Simmons-Harris v. Goff, Nos. 96APE08-982, 96APE08-991, 1997 WL 217583 (Ohio Ct.App., May 1, 1997).24 The Pilot Scholarship Program was enacted in response to an educational crisis in the Cleveland City School District so severe that the State was ordered by a federal court to take over administration of the district. See id. at *1. The scholarship program was drafted so that the money does not flow directly from the State to religiously affiliated schools. Where a scholarship recipient chooses a public school, the State issues a check payable directly to the school. Where the scholarship recipient has chosen a private school, however, the State delivers a check, made payable to the parents, who must endorse the check to the school. See id. Although the Ohio trial court upheld the program in the face of a constitutional challenge, an intermediate appellate court struck down the program “[b]ecause the scholarship program provide[d] direct and substantial, non-neutral government aid to sectarian schools,” and had the primary effect of advancing religion in violation of the Establishment Clause. See id. at *10. An appeal of that decision is pending before the Ohio Supreme Court.
[¶ 52] In 1998, the Wisconsin Supreme Court upheld a statute permitting sectarian schools to participate in the Milwaukee parental school choice program. See Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, cert. denied, --- U.S. ---, 119 S.Ct. 466, 142 L.Ed.2d 419 (1998). The program, enacted to enable economically disadvantaged children in Milwaukee to attend private schools, authorized the State to issue tuition vouchers to approved private schools, both sectarian and nonsectarian, in the name of parents of students attending the school.25 See id. at 608-09. In order for the school to obtain state funding, the voucher must then bе endorsed to the school by the parent whose name appears on the voucher. See id. at 608-09.26 The Supreme Court declined a petition for certiorari in this matter.27
[¶ 54] Although the recent efforts of Arizona, Ohio, Vermont, and Wisconsin provide a backdrop for our analysis, they do not provide persuasive authority for interpretation of the Establishment Clause. The Supreme Court has not yet reviewed any of these programs, and it is not clear which of them, if any, would be found to pass muster under an Establishment Clause analysis. Moreover, although the efforts of other states demonstrate that the Supreme Court‘s changing attitude in Establishment Clause jurisprudence has encouraged other state legislatures to create new programs offering financial assistance to parents of students attending religiously affiliated schools, none speaks to the issue before us today.
4. The Maine Tuition Program Today
[¶ 55] Nonetheless, pointing to the efforts undertaken by a few other state legislatures to include religious schools in various school aid programs, the parents urge us to conclude that Maine‘s tuition program can no longer withstand a constitutional challenge because it continues to exclude religious schools. Maine‘s tuition program has not changed in any substantive manner since the exclusion was enacted in 1981. The program still provides direct tuition payment to the school of the parents’ choice. With the exception of certain certification requirements, it does not place any restrictions or limita-
[¶ 56] A careful review of the teachings of Mueller, Zobrest, Witters and Agostini, leads us to conclude that, notwithstanding the shifts in Establishment Clause jurisprudence since the enactment of the religious school exclusion, in the absence of that exclusion, Maine‘s tuition program would violate the Establishment Clause.
[¶ 57] We undertake this analysis within the framework utilized by the Agostini Court, asking first whether the statute has a “secular legislative purpose.” We conclude, as have most other courts addressing similar questions, that the education of the State‘s children is of such paramount importance that it provides a valid secular reason for state expenditures. See, e.g., Committee for Pub. Educ. & Religious Liberty v. Nyquist, 413 U.S. at 773, 93 S.Ct. 2955. Indeed, there are few other governmental pursuits that involve such important public policy considerations and such an extensive history of governmental involvement. We conclude therefore, “[a]s has often been true in school aid cases, there is no dispute as to the first test.” School Dist. v. Ball, 473 U.S. 373, 383 (1985). See also Mueller v. Allen, 463 U.S. 388, 394, 103 S.Ct. 3062, 77 L.Ed.2d 721 (1983).
[¶ 58] We next ask whether the program, without the exclusion, would have the “impermissible effect of advancing religion.” Agostini at 219, 117 S.Ct. 1997.29 Here, we conclude that the tuition program, without the religious school exclusion, would indeed have the “effect” of advancing religion.
[¶ 59] In contrast to programs that provide secular textbooks to children in religious schools (Allen), that provide special education teachers to children at religious schools (Agostini), that allow an interpreter to assist a hearing impaired child on religious school grounds (Zobrest), or that provide tax benefits to parents who must pay for their children‘s education (Everson), the Maine tuition program provides a direct financial subsidy to the schools. Each of the programs approved by the Supreme Court provide specific limited services to children in religious schools or provide limited financial benefits to the parents of those children, only indirectly benefitting the religious school.30
[¶ 60] Maine‘s tuition program, however, results in state monies flowing directly to the religious institution, thereby funding the bulk of the school‘s costs for the education (religious and secular) of the child at issue. The tuition is based on the individual school‘s expenditures, capped by a state average, the payments are made directly to the school, and no limit or restriction is placed on the use of the State‘s payment by the schools. Although the school is chosen by parents, not the State, choice alone cannot overcome the fact that the tuition program would directly pay religious schools for programs that include and advance religion.
[¶ 61] None of the Supreme Court‘s decisions to date have ever intimated that such direct subsidies of religious schools could survive an Establishment Clause challenge.31
[¶ 63] Nor can it be disputed that the educational functions of Cheverus are intertwined with its religious goals. As it sets forth in its “Purposes and Objectives,” “Cheverus regards the education of character (moral and spiritual education) as its most important purpose and objective as a school. The school works to implement the objective through a doctrinally faithful and morally challenging program of religious education and through liturgies, retreats, and community service.” Full tuition payments to a religious school such as Cheverus would provide a direct, not attenuated, benefit and would directly aid the religious as well as the educational functions of the school.
[¶ 64] Finally, we address the State‘s concern that the elimination of the exclusion would result in excessive entanglement of the government in religious affairs.33 “Not all entanglements, of course, have the effect of advancing or inhibiting religion.... Entanglement must be ‘excessive’ before it runs afoul of the Establishment Clause.” Agostini, 521 U.S. at 233, 117 S.Ct. 1997. Signaling the lowering of the “high and impregnable walls” between church and state referred to in earlier cases, the Court in Agostini opined that “[i]nteraction between church and state is inevitable.... and we have always tolerated some level of involvement between the two.” Id. (citations omitted).
[¶ 65] Although, by this language, we understand the Court to have announced a greater tolerance of interaction between
[¶ 66] We have addressed the first two aspects previously. In the absence of the exclusion, the institutions benefitted by the tuition program would include public, private, and private-religious schools, including those that are pervasively sectarian. The nature of the aid is direct cash payments, unrestricted in use, to the schools.
[¶ 67] The third aspect, the resulting relationship between the State and the religious school, is more difficult to quantify. The school must report annually to the commissioner “the information the commissioner may require.”
[¶ 68] If the level of interaction between the State and Cheverus, absent the exclusion, were potentially dispositive in this case, we would remand the matter for further development of the record. Because we conclude, however, that the undisputed facts in the record make it abundantly clear that the tuition program, consisting of substantial unrestricted cash payments to religious institutions, would have an impermissible “effect” of advancing religion, we are not required to reach a final determination regarding the entanglement problem. A statute that has the effect of advancing religion violates the Establishment Clause, whether or not it results in an impermissible level of interaction between church and state.
[¶ 69] In a final effort to overcome the Establishment Clause impediment, the parents turn to several Free Speech decisions of the Supreme Court. This effort is also unavailing. In Widmar v. Vincent, 454 U.S. 263, 267-68, 102 S.Ct. 269, 70 L.Ed.2d 440 (1981), the Court struck down a public university‘s exclusion of religious organizations from the use of the university‘s meeting rooms and facilities, holding that “[t]he Constitution forbids a State to enforce certain еxclusions from a forum generally open to the public, even if it was not required to create the forum in the first place.” In a similar case, the Court found that the University of Virginia had violated the Free Speech principles of the First Amendment when it declined to reimburse religious groups for printing costs but provided reimbursement for all other groups. See Rosenberger v. Rector & Visitors of the Univ. of Virginia, 515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995).
[¶ 70] The issue before us is wholly distinct from those cases. The parents cannot assert that they have been denied a forum for any type of speech. Rather, they seek to have the State pay for their children‘s education. Moreover, the Rosenberger Court explicitly distinguished school aid cases when it noted
[¶ 71] That state funds would flow directly into the coffers of religious schools in Maine were it not for the existing exclusion cannot be debated. If the religious school exclusion were eliminated, the State would likely pay more than $5,000 per student per year to Cheverus High School, without restriction on the use of those funds. In the entire history of the Supreme Court‘s struggle to interpret the Establishment Clause it has never concluded that such a direct, unrestricted financial subsidy to a religious school could escape the strictures of the Establishment Clause. While it may be possible for the Legislature to craft a program that would allow parents greater flexibility in choosing private schools for their children, the current program could not easily be tailored to include religious schools without addressing significant problems of entanglement or the advancement of religion. It is up to the Legislature, not the courts, to determine whether and how to attempt to structure such a program.36
[¶ 72] Accordingly, we conclude that the current exclusion of religious schools from Maine‘s tuition program does not violate the Free Exercise or Establishment Clauses of the First Amendment or the Equal Protection mandates of the Fourteenth Amendment. Because we affirm the judgment of the Superior Court, we do not reach the parents’ challenge to the court‘s dismissal of the cause of action against the Town of Raymond or the defendants’ challenge to the trial court‘s evidentiary rulings.
The entry is
Judgment affirmed.
CLIFFORD, J., dissenting.
[¶ 73] Although I have little quarrel with much of the Court‘s analysis of current Supreme Court case law as it relates to the constitutionality of Maine‘s public and private school tuition program, I disagree with its final conclusion that the program is constitutional. In my view, the program, as presently constituted, violates the rights of the parents guaranteed by the Equal Protection Clauses of the federal and state constitutions.37 Accordingly, I respectfully dissent.
[¶ 74] Applying to towns without their own public school system,
[¶ 75] The Equal Protection Clauses38 prohibit disparate treatment of similarly situated persons. See Nugent v. Town of Camden, 1998 ME 92, ¶ 15, 710 A.2d 245, 249 (quoting Wellman v. Department of Human Servs., 574 A.2d 879, 883 (Me.1990) (“The prohibition
[¶ 77] The Court concludes that including religious schools in the tuition program, as it is presently constituted, would probably result in noncompliance with Establishment Clause law. This is so because the tuition is paid directly to the schools and is substantial in amount, covering nearly the entire costs of the schools’ programs. Moreover, the program, as presently designed, places few restrictions on the use of the money. The tuition could be used to benefit the religious as well as the secular educational aspects of the school. See Columbia Union College v. Clarke, 159 F.3d 151, 162 (4th Cir.1998).
[¶ 78] In my view, however, the analysis cannot end there. The Establishment Clause is not the only constitutional provision implicated in this challenge to Maine‘s education tuition statute. The parents also allege a violation of their right to equal protection of the law.
[¶ 79] Because the disparate treatment mandated by the statute is based on religion, implicating the most fundamental of the parents’ constitutional rights, we must subject the statute to a strict scrutiny analysis. See School Admin. Dist. No. 1, 659 A.2d at 857; Choroszy v. Tso, 647 A.2d 803, 808 (Me.1994). The burden of justifying the discrimination is on the defendants. First, they must demonstrate that the classification excluding religious schools is justified by a compelling governmental interest. Second, they must show that the means chosen by the State to carry out the purpose of the program is narrowly tailored to the achievement of that goal. See Wygant v. Jackson Bd. of Educ., 476 U.S. 267, 274, 106 S.Ct. 1842, 90 L.Ed.2d 260 (1986).
[¶ 80] The stated goal of the tuition program is laudable. It gives parents in towns without public schools a wide choice of schools, public and private, for their children to attend, and it does so without running afoul of the Establishment Clause.39 The means chosen by the State to achieve its goal, however, must be narrowly tailored to the accomplishment of that objective.40 See Adarand Constructors, Inc. v. Pena, 515 U.S. 200, 237, 115 S.Ct. 2097, 132 L.Ed.2d 158 (1995) (a race-based classification necessary to further a compelling government interest is “within constitutional constraints if it satisfies the narrowly tailored test ... set out in previous cases“). To determine whether a classification is “narrowly tailored,” courts must consider “whether lawful alternative and less restrictive means could have been used.” Wygant, 476 U.S. at 280 n. 6, 106 S.Ct. 1842 (citing Ely, The Constitutionality of Reverse Discrimination, 41 U. CHI. L. REV. 723, 727, n. 26 (1974) (classification must “fit with greater precision than any alternative means“)).41 “Fundamentally,
[¶ 82] In Agostini, the Supreme Court reiterated that the issue in Establishment Clause cases is “whether the government acted with the purpose of advancing or inhibiting religion ... [and] whether the aid has the effect of advancing or inhibiting religion.” 521 U.S. at 222-23, 117 S.Ct. 1997. The Supreme Court, however, acknowledged that it has “departed from the rule ... that all government aid that directly aids the educational function of religious schools is invalid.” Id. at 225, 117 S.Ct. 1997.
[¶ 83] Several states have recently enacted programs to expand educational choices for parents. In Ohio, scholarships are provided to parents to send their children to private schools, including religious schools. See Simmons-Harris v. Goff, Nos. 96APE08-982, 96APE08-991, 1997 WL 217583 at *1 (Ohio Ct.App., May 1, 1997). In Wisconsin, state issued tuition vouchers allow low income parents to send their children to private schools, including religious schools. See Jackson v. Benson, 218 Wis.2d 835, 578 N.W.2d 602, 607-09 (1998), cert. denied, --- U.S. ---, 119 S.Ct. 466, 142 L.Ed.2d 419 (1998). And in Arizona, persons donating to school tuition organizations are allowed a state tax credit of up to $500. See Kotterman v. Killian, 972 P.2d 606, 609-10 (Ariz. 1999).
[¶ 84] In my view, the recent evolution of Establishment Clause jurisprudence and the programs being enacted in several states make it clear that the total exclusion of religious schools from a tuition program providing aid to parents of children attending private as well as public schools is not essential. Establishment Clause violations may be avoided by a tuition program that does not entirely exclude religious schools, but provides more limited tuition with reasonable restrictions conditioning the use of that aid. In Jackson v. Benson, for example, the Wisconsin Supreme Court found no Establishment Clause violation in a tuition voucher program that provided substantial monetary aid to religious schools without restriction on how the aid was used because the program: selects its beneficiaries based on random,
[¶ 86] Although the legislature need not offer any aid to parents who choose private schools for their children, if such aid is provided, the Equal Protection Clause prohibits discrimination based on religion in a program providing such aid unless the discrimination is absolutely necessary to avoid Establishment Clause violations. In my view, the defendants cannot rely on the Establishment Clause to justify the present tuition program that blatantly discriminates on the basis of religion, when a more narrowly tailored tuition program could be created that would lessen the discrimination based on religion, while still complying with the Establishment Clause. The Establishment Clause prevents the government from establishing a church, passing laws “which aid one religion, aid all religions, or prefer one religion over another,” or punishing individuals for professing particular religious beliefs. Everson v. Board of Educ., 330 U.S. 1, 15-16, 67 S.Ct. 504, 91 L.Ed. 711 (1947). It was not intended to provide States with a blanket justification for discriminating against religion.
[¶ 87] I would vacate the judgment of the Superior Court and remand to that court for further proceedings.