The U.S. Department of Justice announced Monday that it has filed a friend-of-the-court brief in support of three Maine families who are challenging a decades-old state law that bars tuition reimbursement for attending religious schools.

Angela and Troy Nelson pose in August 2018 with their children, Royce and Alicia, at their home in Palermo. The Nelsons send their son to Temple Academy in Waterville at their own expense and would like to send their daughter to Temple Academy but cannot afford  it without public tuition funding. Joe Phelan/Kennebec Journal

In its filing Monday at the Court of Appeals for the First Circuit in Boston, where the case is pending, the department claims the law banning religious schools from the school tuition program violates the First Amendment.

“Our Constitution guarantees that all people in our nation may exercise their religion free from discrimination by the government,” Eric Dreiband, assistant attorney general for the department’s Civil Rights Division, said in a news release.

“The First Amendment’s religious freedom protections are especially important for families and children, and the Department of Justice is committed to ensuring that all children may participate equally in educational programs without discrimination because of their religion,” Dreiband said.

Monday’s declaration follows a June 26 ruling in U.S. District Court by Judge D. Brock Hornby declaring that Maine education money cannot be used to pay tuition to religious schools in communities without state-funded schools of their own.

“It has always been apparent that, whatever my decision, this case is destined to go to the First Circuit on appeal, maybe even to the Supreme Court,” Hornby wrote in his opinion.

In Maine, local school administrative units that do not have their own secondary schools can pay a certain amount in tuition for students to attend outside public or private schools, but not to religion-affiliated schools.

The plaintiffs, David and Amy Carson, Alan and Judith Gillis and Troy and Angela Nelson, all live in Maine school districts that do not operate their own high schools and either send their children to a religious high school at their own expense, or would like to send their children to a religious high school but cannot afford to do so.

The Carson and Gillis families send their daughters to the Bangor Christian School at their own expense, while the Nelsons send their son to Temple Academy in Waterville at their own expense. The Nelsons would like to send their daughter to Temple Academy but cannot afford the cost of tuition for two children.

In August 2018, the families sued Robert G. Hassan Jr., who at the time was the state’s commissioner of education. Hassan has been replaced by A. Pender Makin, who is now named as the defendant in the suit.

More than 30 states have constitutional amendments that prohibit state funding of religious organizations, including schools. Though Maine is not one of them, it passed a law in 1981 that bars public funding for religious schools. Legislative efforts to expand school choice and give taxpayer money to religious schools have failed to gain traction in recent years.

Another group that has filed court papers in support of the plaintiffs is the Virginia-based Institute for Justice, a nonprofit libertarian public interest law firm.

The Department of Justice argues in its filing that Maine’s tuition policy prohibits otherwise qualified religious secondary schools from receiving funds available to other secondary schools that meet Maine’s basic school approval requirements – simply because of their religious character.

“That discriminatory restriction is odious to our Constitution and it cannot stand,” the Justice brief says.

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