Bagley v. Raymond School Dept.

• Decision Date: 23 April 1999
• Citation: 728 A.2d 127,1999 ME 60
• Parties: Robert BAGLEY et al. v. RAYMOND SCHOOL DEPARTMENT et al.
• Court: Maine Supreme Court

728 A.2d 127

1999 ME 60

Robert BAGLEY et al. v. RAYMOND SCHOOL DEPARTMENT et al.

Supreme Judicial Court of Maine.

Argued November 2, 1998.

Decided April 23, 1999.

Linda C. Russell, Pettrucelli & Martin, LLP, Portland, Richard D. Komer (orally), Clint Bolick, William H. Mellor, Institute for Justice, Washington, DC, for plaintiffs.

Michael E. Saucier (orally), Thompson & Bowie, Portland, for Raymond School Department.

Andrew Ketterer, Attorney General, Peter J. Brann, State Solicitor, (orally), Augusta, for State defendants.

Donald F. Fontaine, Fontaine & Beal, P.A., Portland, Robert H. Chanin, John M. West, Page Kennedy, Bredhoff & Kaiser, PLLC, Washington, DC, for Timothy Humphrey et al.

Barbara G. Shaw, Marcus Grygiel & Clegg, P.A., Portland, Jeffrey A. Thaler, Bernstein, Shur, Sawyer & Nelson, Portland, for Maine Civil Liberites Union.

David G. Webbert, Johnson & Webbert, LLP, Augusta, Nathan Lewin, Richard W. Garnett, Miller, Cassidy, Larroca & Lewin, LLP, Washington, DC, Dennis Raps, National Jewish Commission on Law and Public Affairs, New York City, for amici curiae National Jewish Commission on Law and Public Affairs, Agudath Harabonim of the United States and Canada, Agudath Israel of America, Union of Orthodox Jewish Congregations of America, National Council of Young Israel, Rabbinical Alliance of America, Rabbinical Council of America, and Torah Umesorah—National Society of Hebrew Day Schools.

David A. Soley, Bernstein, Shur, Sawyer & Nelson, Portland, Steven K. Green, Ayesha N. Khan, Americans United for Separation of Church and State, Washington, DC, Jeffrey P. Sinesky, American Jewish Committee, New York City, Elizabeth J. Coleman, Steven M. Freeman, Lauren A. Levin, Anti-Defamation League of B'nai B'rith, New York City, Elliott M. Michberg, Judith E. Schaeffer, People for the American Way Foundation, Washington, DC, for amici curiae Americans United for Separation of Church and State, American Jewish Committee, Anti-Defamation League of B'nai B'rith, People for the American Way Foundation.

Michael H. Hill, Monaghan, Leahy, Hochadel & Libby, Portland, Kevin J. Hasson, Eric W. Treene, The Becket Fund for Religious Liberty, Washington, DC, Daniel E. Troy, Alex M. Azar II, Wiley, Rein & Fielding, Washington, DC, for amici curiae The Becket Fund for Religious Liberty.

Before WATHEN, C.J., and CLIFFORD, RUDMAN, DANA, SAUFLEY, and ALEXANDER, JJ.

SAUFLEY, J.

[¶ 1] We are called upon in this case to determine whether Maine's education tuition program, which explicitly excludes religious schools from receipt of state funds, violates any section of the United States or Maine Constitution. Because we conclude that it does not, we affirm the judgment of the Superior Court (Cumberland County, Mills, J.).

I. BACKGROUND

[¶ 2] The material facts are undisputed. Maine requires all school districts to provide education to its residents from kindergarten through twelfth grade. See 20-A M.R.S.A. § 1001(8) (1993 & Supp.1998). Those districts that do not have their own schools must provide tuition to resident families for use in other schools, through the State's education tuition program. Under the tuition program, students of parents residing in a school district which neither maintains a secondary school nor contracts for secondary school privileges may attend a school approved for tuition purposes. See 20-A M.R.S.A. § 5204(4). The school district must pay tuition for these students in the amount of the legal tuition rate, defined in chapter 219. See id.

[¶ 3] The tuition rate for each school is approximately equal to the sum of the school's allowable expenditures, divided by the number of students at a particular school, adjusted by certain factors, and capped by a statewide average per public secondary student cost. See 20-A M.R.S.A. §§ 5805, 5806. School districts have the option either to contract with one public school to take all of their students, pursuant to 20-A M.R.S.A. § 5204(3),¹ or pay tuition to public and approved private schools that accept students from that school district, pursuant to 20-A M.R.S.A. § 5204(4).² If the tuition program is used by a district, the district pays tuition directly to a public school or to a private school that has accepted the child, has been selected by the child's parents, and has been approved for tuition purposes, pursuant to 20-A M.R.S.A. § 2951. See 20-A M.R.S.A. § 5810.

[¶ 4] Approximately half of the school districts in Maine satisfy their obligation by operating public elementary and secondary schools. The other half satisfy their obligation either wholly through Maine's tuition program, or by operating some schools, usually elementary, and paying tuition for students to attend only those schools which the school districts do not operate. Nearly 14,000 students attend public and approved private schools under the tuition program and approximately $70 million in public funds is expended each year by the Maine Department of Education and local school districts on tuition for students to attend these schools.

[¶ 5] Prior to 1981, parents were able to select religious schools for participation in Maine's tuition program. In 1981, however, the Legislature made religious schools ineligible for the program by amending the statute to provide that "[a] private secondary school may be approved for the receipt of public funds for tuition purposes only if it... [i]s a nonsectarian school in accordance with the First Amendment of the United States Constitution." 20-A M.R.S.A. § 2951(2) (emphasis added). The change was enacted in response to an Opinion of the Attorney General. See Op. Me. Att'y Gen. 80-2. That Opinion, solicited by the Senate Chair of the Legislature's Committee on Education, concluded that the inclusion of religious schools in Maine's tuition program violated the Establishment Clause of the United States Constitution. See id. The State does not dispute that its only justification for excluding religious schools from the tuition program was compliance with the Establishment Clause.

[¶ 6] The Raymond School District ("Raymond") does not have a high school and instead provides secondary education through Maine's tuition program. Most of the high school students in Raymond attend public school in Windham, Westbrook, and Gray-New Gloucester. Some, however, attend approved private schools, including North Yarmouth Academy, Hebron Academy, and Waynflete School.³

[¶ 7] Five families from the town of Raymond, Robert and Cynthia Bagley; Gary and Cynthia St. Pierre; Dennis and Patricia Cole; Ricky and Mary Thornton; and Jack and Stacie Fitch (referred to herein collectively as the "parents"), enrolled their sons at Cheverus High School, an all-male, private Roman Catholic college preparatory school, located in Portland and operated by the Society of Jesus, a religious order. There is no dispute that Cheverus High School is a religious school, specifically, a "pervasively sectarian school," educating its students in both secular and religious subjects.⁴ Each of the boys attended public elementary school and, through the tuition program, public middle schools. None of the children attended Catholic schools during their primary education.

[¶ 8] The Coles, Thorntons, and Fitchs are either not Catholics or are not practicing Catholics, and all sent their sons to Cheverus High School primarily for academic and social reasons. The St. Pierres initially indicated that religion was a factor in their decision to send their son to Cheverus but later explained that the Cheverus hockey program and its academic reputation were the determining factors in their selection. The Bagleys, however, allege that religion was a principle motivation for choosing Cheverus, and Cynthia Bagley testified that it was her own "personal faith choice."

[¶ 9] After enrolling their sons, the parents requested that Raymond pay their sons' tuition at Cheverus. Raymond denied their requests, responding that "the Raymond School Department cannot pay tuition costs for sectarian schools," because they are not approved schools pursuant to 20-A M.R.S.A. § 2951(2). The parents filed this suit against Raymond, the Department of Education, and the Commissioner of Education, alleging that Raymond had violated their constitutional rights by refusing to pay tuition to the high school they selected for their sons.

[¶ 10] Without objection by the parents, a group of Raymond taxpayers and the Maine Civil Liberties Union intervened as defendants. Raymond then filed a motion to dismiss, which the trial court granted, holding that Raymond could not be liable under 42 U.S.C. § 1983 because the school district had no choice but to apply state law. Subsequently, the parents and the remaining defendants filed cross motions for summary judgment. After argument, the Superior Court granted the defendants' motions for summary judgment and denied the parents' motion for summary judgment, holding that 20-A M.R.S.A. § 2951(2) did not violate any of the constitutional provisions asserted by the parents.⁵

II. ANALYTICAL FRAMEWORK

[¶ 11] This appeal presents a unique question, requiring that we articulate with precision the issues before us. Unlike most recent cases addressing educational programs that provide state funding for religious schools,⁶ we are not called upon to determine whether a particular program in which state funds benefit religious schools violates the Establishment Clause. Instead, we are presented with the opposite question: whether a tuition program that specifically excludes religious schools violates any of three constitutional provisions: the Establishment Clause of the First Amendment; the Free Exercise Clause of the First Amendment; or the Equal Protection Clause of the Fourteenth Amendment. These distinctions are critical to our analysis.

[¶ 12] Nationally, state legislatures have recently begun undertaking efforts to allow parents more flexibility and increased options in...