The 1st U.S. Circuit Court of Appeals in Boston upheld a Maine law Thursday that excludes religious schools from a publicly funded high school tuition program.

Parents challenging the law and their attorneys at the Institute for Justice in Arlington, Virginia, say they plan to appeal the decision to the U.S. Supreme Court, according to a written statement.

Under the statute, school districts in Maine that don’t have their own secondary schools can pay tuition for students to attend other public or private schools, but not religious schools.

Three families in Orrington, Glenburn and Palermo sued the state in 2018 to get that tuition reimbursement for their children at Bangor Christian School and Temple Academy in Waterville.

“The U.S. Constitution does not allow the government to discriminate against religious educational options,” said Arif Panju, senior attorney at the institute. “The state of Maine has done so for 40 years, and we will ask the U.S. Supreme Court to finally put an end to it.”

The plaintiffs’ lawyers said the federal appeals court’s decision was especially disappointing given a recent Supreme Court decision, Espinoza vs. Montana, which struck down similar restrictions in a school choice program. 

Judge Brock Hornby upheld the Maine law last year in U.S. District Court in Portland, but he sent the case to the 1st Circuit for a definitive opinion.

“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 at the time.

Hornby cited the Maine Human Rights Act, which prohibits religious groups from receiving public money if they maintain a discriminatory hiring policy against LGBTQ people. Both Bangor Christian and Temple Academy do so, according to court documents.

“It is not the state’s job to teach children how to pray or how to practice religion, but it is the state’s job to avoid funding entities that promote discrimination,” Zachary Heiden, chief legal counsel of ACLU of Maine, said in 2019.