PORTLAND, Maine — Maine's highest court revisited the question of state funding of religious schools on March 24 as the justices heard the second challenge in a decade to a 1981 law restricting the use of tuition vouchers.
At issue was whether towns that have no public high school and provide tuition vouchers for children to attend public or private secular schools must include religious schools within the range of choices.
The case was brought by a legal-advocacy group on behalf of eight families from Durham, Minot and Raymond who sought to use the public funding to send their children to St. Dominic Regional High School, Union Springs Academy and Pine Tree Academy.
Robert Komer of the Washington-based Institute for Justice maintained that a 2002 U.S. Supreme Court decision upholding a voucher program in Cleveland (Zelman v. Simmons-Harris) removed the legal underpinnings for the Maine court's ruling in a similar case that his group brought in 1997.
"It changed the landscape," said Komer, who argued that the Cleveland case should trump the Supreme Judicial Court's 1999 ruling that the use of publicly funded vouchers for religious education violated the establishment clause of the U.S. Constitution.
But several of the justices remained skeptical, some suggesting that there was no requirement that the state allow the use of vouchers in church schools.
"There is a distinction between what is prohibited and what is mandated," said Chief Justice Leigh Saufley.
An estimated 17,000 Maine students from 145 small towns with no high schools are subject to the voucher program.
Assistant Attorney General Paul Stern noted that the 1st U.S. Circuit Court of Appeals has already weighed in on the issues raised in the appeal. He and several justices suggested that the Legislature might be the proper forum for any changes in the law.
The case argued is akin to a 1997 lawsuit brought by five Raymond families who sought to have the state pay for their children's tuition at Cheverus High School, a Roman Catholic school in Portland.
Several of the plaintiff families in the current case, including Jill and Lionel Guay of Minot, were in the court during arguments.
The Guays, who have a daughter in the senior class at St. Dominic, said they had not lost hope that they might ultimately prevail.
"We have a little one coming up, in the seventh grade," said Jill Guay, "so it's worth it to us to continue."