Anderson v. Town of Durham

895 A.2d 944

2006 ME 39

Julia ANDERSON et al. v. TOWN OF DURHAM et al.

Supreme Judicial Court of Maine.

Argued: March 24, 2005.

Reargued: February 14, 2006.

Decided: April 26, 2006.

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Jeffrey T. Edwards, Preti Flaherty Beliveau Pachios & Haley, L.L.P., Portland, Richard D. Komer (orally), Clark M. Neily, Institute for Justice, Arlington, VA, for plaintiffs.

G. Steven Rowe, Atty. Gen., Paul Stern, Deputy. Atty. Gen. (orally), William H. Laubenstein III, Asst. Atty. Gen., Sarah Forster, Asst. Atty. Gen., Augusta, Michael E. Saucier (orally), Thompson & Bowie, L.L.P., Jeffrey A. Thaler (orally), Bernstein Shur Sawyer & Nelson, P.A., Zachary Heiden, Maine Civil Liberties Union Foundation, Portland, Peter J. Brann, Brann & Isaacson, Lewiston, Andrew D. Roth, Bredhoff & Kaiser, P.L.L.C., Robert H. Chanin, National Education Association, Washington, DC, for defendants.

Panel: SAUFLEY, C.J., and CLIFFORD, DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.^*

Majority: SAUFLEY, C.J., and DANA, ALEXANDER, CALKINS, LEVY, and SILVER, JJ.

Concurrence: SAUFLEY, C.J., and LEVY, J.

Dissent: CLIFFORD, J.

ALEXANDER, J.

[¶ 1] In this case, we review again whether Maine's tuition payment statute, 20-A M.R.S. § 2951(2) (2005), violates the First and Fourteenth Amendments of the United States Constitution. The statute authorizes the use of public funds to pay tuition at approved private schools on behalf of students who live in districts that do not operate a public high school, provided the school is nonsectarian. We upheld section 2951(2) against a constitutional challenge in Bagley v. Raymond School Department, 1999 ME 60, 728 A.2d 127. The plaintiffs assert that a subsequent decision of the United States Supreme Court, Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), that upheld the constitutionality of an Ohio tuition voucher program, has changed the law and compels a determination that the prohibition on payments for tuition to attend sectarian schools now violates the United States Constitution. More recent federal court decisions and our review of the current state of the law confirm that the choice the Legislature made in enacting section 2951(2) continues to be a valid, constitutional enactment. Accordingly, we affirm the summary judgment entered in the Superior Court (Cumberland County, Crowley, J.) holding that section 2951(2) is constitutional.

I. CONSTITUTIONAL AND STATUTORY PROVISIONS AT ISSUE

[¶ 2] The constitutional requirements at issue in this case are stated in the First Amendment to the United States Constitution, made applicable to the states by the Fourteenth Amendment to the United States Constitution.¹ The First Amendment states, in pertinent part: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof ...."

[¶ 3] The statute at issue is 20-A M.R.S. § 2951(2). Title 20-A M.R.S. § 2951 (2005) states in part: "A private school may be approved for the receipt of public funds for tuition purposes only if it: ... (2) ... [i]s a nonsectarian school in accordance with the First Amendment of the United States Constitution."

II. LEGAL HISTORY

[¶ 4] We extensively discussed the history and nature of section 2951(2) in Bagley, 1999 ME 60, ¶¶ 2-5, 728 A.2d at 130-31. Title 20-A authorizes the Department of Education and school districts to provide a public education in a variety of ways. A school district may build its own high school, or it may contract with another school district or private school that meets State school approval criteria for tuition purposes. 20-A M.R.S. § 2701 (2005). Parents in communities that do not have a public high school² may elect to send their children to a public high school or an approved private school. Id. Public funds are used to pay to the selected high school a set amount towards tuition costs that is based on an anticipated public high school tuition cost, set pursuant to 20-A M.R.S. §§ 5805, 5806, 5808 (2005). School approval criteria include either accreditation by the New England Association of Colleges and Secondary Schools, or compliance with State requirements including basic instruction in designated curriculum,³ certification of teachers, length of school day, and student-teacher ratios. 20-A M.R.S. §§ 2901, 2902 (2005).

[¶ 5] Before 1980, Maine's tuition statute permitted payment of public funds to approved sectarian schools for tuition payment purposes. In 1980, in response to an inquiry from a member of the Legislature, Maine's Attorney General issued an opinion stating that using public funds to pay tuition at private, religious schools violated the Establishment Clause. Op. Me. Att'y Gen. 80-2. The Legislature then enacted section 2951(2), which precluded sectarian schools from being approved for receipt of public tuition funds. P.L. 1981, ch. 693, § 5.

[¶ 6] The tuition payment statute imposes a number of obligations on schools that receive public tuition funds. It states:

§ 2951. Approval for tuition purposes A private school may be approved for the receipt of public funds for tuition purposes only if it:

1. Basic approval. Meets the requirements for basic school approval under subchapter I;

2. Nonsectarian. Is a nonsectarian school in accordance with the First Amendment of the United States Constitution;

3. Incorporated. Is incorporated under the laws of the State of Maine or of the United States;

4. Repealed. Laws 1983, c. 859, § A, 8.

5. Additional requirements. Complies with the reporting and auditing requirements in sections 2952 and 2953 and the requirements adopted pursuant to section 2954;

6. Student assessment. Any school that enrolls 60% or more publicly funded students, as determined by the previous year's October and April average enrollment, shall participate in the statewide assessment program to measure and evaluate the academic achievements of students; and

7. Release of student records. Upon the request of a school unit, release copies of all student records for students transferring from the private school to the school unit.

20-A M.R.S. § 2951 (2005).

[¶ 7] Bagley upheld section 2951(2) in the face of a First and Fourteenth Amendment challenge.⁴ At that time, another group of parents brought suit in federal court challenging section 2951(2). The Court of Appeals for the First Circuit determined that section 2951(2) was constitutional in Strout v. Albanese, 178 F.3d 57, 66 (1st Cir.1999).

[¶ 8] In Zelman, the United States Supreme Court upheld the constitutionality of an Ohio tuition voucher program that authorized the use of public funds to pay for a child's education at any approved school selected by the parents, including a religious school, determining that the particular program did not conflict with the Establishment Clause. 536 U.S. at 652-53, 122 S.Ct. 2460.

[¶ 9] After the Supreme Court decided Zelman, a bill to repeal section 2951(2) was introduced in the Maine Legislature. L.D. 182 (121st Legis. 2003). The bill did not pass. Thereafter, the plaintiffs initiated this lawsuit to test the constitutional viability of section 2951(2) after Zelman. As before, a different group of parents brought suit in federal court, challenging section 2951(2) on similar grounds. The federal case culminated in a decision of the Court of Appeals for the First Circuit holding that, even after Zelman, the Constitution does not require the State of Maine to fund tuition at sectarian schools. Eulitt v. State of Me., Dep't of Educ., 386 F.3d 344 (1st Cir.2004). Also, in 2004, the United States Supreme Court, in Locke v. Davey, 540 U.S. 712, 124 S.Ct. 1307, 158 L.Ed.2d 1 (2004), held that a publicly funded Washington State college scholarship program could, without violating the constitution, prohibit use of the funds for pursuit of a devotional theology degree. Id. at 725, 124 S.Ct. 1307.

III. FACTUAL AND PROCEDURAL HISTORY

[¶ 10] The facts in this case are largely stipulated and are not in dispute. The plaintiffs are parents of high school age children who reside in Minot, Raymond and Durham.⁵ The school administrative units within these towns do not operate a public high school. Minot has contracted with the Town of Poland to provide a secondary education to ninety per cent of Minot's students. A student's family may apply to attend another high school, and approval is given on a case-by-case basis, based on educational program requirements.

[¶ 11] Raymond has contracted with the Town of Windham to take fifty percent of Raymond's high school students beginning in 2003.⁶ The City of Westbrook has agreed to enroll as many of Raymond's high school students as Raymond wishes. As of October 1, 2003, twenty-five high school students from Raymond, supported by public funds, attended approved private high schools.

[¶ 12] Durham does not have a contract with any neighboring school district, but most of its high school students attend Brunswick High School. As of April 1, 2004, three high school students from Durham attend approved private high schools with public funds.

[¶ 13] The plaintiffs are parents who have elected to send their children to private religious schools that do not qualify as nonsectarian schools for payment of tuition with public funds. For the 2002-2003 school year, one student attends a pervasively sectarian⁷ Seventh Day Adventist school. Courses in the religion are required, and students must attend chapel and religious assemblies. Students at these schools cannot avoid Seventh Day Adventist teachings.

[¶ 14] The remaining students attend St. Dominic's Regional High School in Auburn. St. Dominic's is a private, pervasively sectarian Roman Catholic High School operated under the authority of the Roman Catholic Bishop of Portland. Its admissions policy gives preference to students whose families are registered members of Catholic parishes. Participation in religious classes and...