PORTLAND, Maine — A U.S. Supreme Court decision that says states can't cut religious schools out of programs that send public money to private education could breathe new life into efforts to force Maine and Vermont to help fund religious educations.
A lawsuit by three families in Maine who want the state to pay for for religious school tuition is already pending in the 1st Circuit Court of Appeals in Boston.
A separate case in Vermont that would allow students from religious schools to participate in a program where high school students could take college courses at state expense is being appealed to the 2nd Circuit Court of Appeals in New York.
Tim Keller of Institute for Justice in Virginia, which is representing the Maine families, said the 1st Circuit judges were skeptical during arguments but he said the Supreme Court ruling Tuesday in a Montana case changes things.
The plaintiffs made a new filing late Tuesday to reference the Montana decision that says states that subsidize private education cannot exclude religious private schools, Keller said in an email.
The Maine Department of Education currently allows families who reside in towns without their own public schools to receive tuition to attend a public or private school, as long as it's not a parochial school.
"Excluding religious schools from the array of options open to Maine parents who receiving the tuition benefit, simply because they are religious schools, is now clearly unconstitutional," Keller wrote.
Maine Attorney General Aaron Frey said the cases are different and that he expects the state to prevail. The Montana case focuses on its constitution broadly barring government aid to schools operated by religious organizations and does not require Maine to do the same, he said.
"We remain confident that the First Circuit will uphold Maine's restriction against sectarian schools receiving public funds," he said.
Vermont has a long history of using public money to pay for high school educations at private schools for students who live in towns that don't have their own high schools. But the state Supreme Court ruled in 1999 that public money cannot be used for religious schools.
Last year, the group Alliance Defending Freedom filed a federal lawsuit against the Vermont Education Agency on behalf of a number of students from the Rice Memorial High School in South Burlington saying they wished to take college classes under Vermont's Dual Enrollment program, but were excluded because they attend a Catholic high school.
Last month, U.S. District Court Judge Christina Reiss denied the students a preliminary injunction. Earlier this month, the students filed their notice of appeal with the 2nd Circuit.
"In Vermont you have this dual enrollment program that pretty much everybody is eligible for, but if you attend a private religious school then you are almost universally excluded from it," Alliance Attorney John Bursch said Tuesday. "So it suffers from the same religious discrimination that was at issue in (the Montana case)."
The U.S. Supreme Court ruled Tuesday in a dispute over a Montana scholarship program for private K-12 education that also makes donors eligible for state tax credits. The 5-4 decision overturned a state supreme court ruling that the tax credit violated the Montana constitution's ban on state aid to religious schools.
Bursch said he felt the impact of the decision in Vermont could go beyond the dual enrollment issues in the current case he is involved in.
"The U.S. Supreme Court emphatically rejected that and said you are discriminating against religious schools and families who attend religious schools based on their status as religion," he said.
Ted Fisher, a spokesman for the Vermont Education Agency, said Tuesday the state had not reviewed the Supreme Court ruling "or to evaluate its applicability to Vermont."