United States District Court, D. Maine
DAVID and AMY CARSON, on their own behalf and as next friends of their child, O.C.; ALAN and JUDITH GILLIS, on their own behalf and as next friends of their child, I.G.; and TROY and ANGELA NELSON, on their own behalf and as next friends of their children, A.N. and R.N., Plaintiffs
v.
A. PENDER MAKIN, in his official capacity as Commissioner of the Maine Department of Education, Defendant
DECISION AND ORDER ON CROSS-MOTIONS FOR JUDGMENT ON A
STIPULATED RECORD
D.
BROCK HORNBY, UNITED STATES DISTRICT JUDGE
This
case concerns the application of the First Amendment religion
clauses to Maine's funding of secondary education-namely
its exclusion of sectarian schools from its program of paying
tuition to parent-chosen private schools when local
government does not provide a public school. A number of
amici curiae have demonstrated their interest in the
issue by filing legal memoranda on both sides, and the United
States has filed a statement of interest supporting the
plaintiffs. The parties initially filed cross-motions for
summary judgment but at oral argument on June 24, 2019,
agreed to submit the case as cross-motions for judgment on a
stipulated record.[1]
Underlying
Facts
The
parties have stipulated that Maine school administrative
units must “either operate programs in kindergarten and
grades one to 12 or otherwise provide for students to
participate in those grades as authorized elsewhere in this
Title.”[2] Of the 260 school administrative units in
Maine, 143 do not operate a secondary school, including those
that serve the plaintiffs' towns of residence- Glenburn,
Orrington, and Palermo.[3] Any school administrative unit like
these “that neither maintains a secondary school nor
contracts for secondary school privileges pursuant to chapter
115 shall pay the tuition, in accordance with chapter 219, at
the public school or the approved private school of the
parent's choice at which the student is
accepted.”[4] The school administrative units that serve
the plaintiffs' towns “do not contract for
secondary school privileges with any particular public or
private secondary school for the education of their resident
secondary students.”[5] Those school administrative units
therefore “are obligated to pay up to the legal tuition
rate . . . to the public or private school approved for
tuition purposes selected by the resident secondary
student's parents.”[6] But a “private school may
be approved for the receipt of funds for tuition purposes
only if it . . . [i]s a nonsectarian school in accordance
with the First Amendment of the United States
Constitution.”[7]
It is
this last requirement-that the parent-selected private school
be nonsectarian-that provokes this lawsuit.[8]
Analysis
Over
the past many years, several court cases have upheld the
Maine approach to school choice when the school
administrative unit does not provide public secondary
education. See Strout v. Albanese, 178 F.3d 57 (1st
Cir. 1999); Bagley v. Raymond Sch. Dep't, 728
A.2d 127 (Me. 1999); Anderson v. Town of Durham, 895
A.2d 944 (Me. 2006); Joyce v. State, 951 A.2d 69
(Me. 2008). The latest federal case to do so is Eulitt
ex. rel. Eulitt v. Maine, Dep't of Educ., 386 F.3d
344 (1st Cir. 2004), aff'g 307 F.Supp.2d 158 (D.
Me. 2004). All those cases ruled in favor of the state
against First Amendment or Equal Protection challenges. What
provokes renewal of the dispute now, in the face of those
many past decisions, is a 2017 United States Supreme Court
decision, Trinity Lutheran Church of Columbia, Inc. v.
Comer, 137 S.Ct. 2012 (2017). In Trinity
Lutheran, the Supreme Court held that it is a violation
of the First Amendment's free exercise clause to deny a
generally available subsidy for rubberized playground
surfaces at preschool and daycare facilities solely on the
ground that a church operates the facilities. According to
the plaintiffs, some of the amici, and the United
States, Trinity Lutheran has radically changed the
constitutional landscape of First Amendment free exercise
challenges and finally makes Maine's approach
unconstitutional.
But
Maine's Attorney General says that, notwithstanding
Trinity Lutheran, these plaintiffs (the parents of
secondary school students) have no standing to challenge the
Maine law because there is no substantial likelihood that the
sectarian schools to which they want to send their
children-Bangor Christian Schools and Temple Academy-will
even apply for state approval under section 2951(2). The
Attorney General gives two reasons: first, the schools have
not said they will apply, only that they might
“consider” doing so, Def.'s Mot. For Summ. J.
at 13 (ECF No. 29), citing Joint Stipulated Facts
¶¶ 128, 182; second, that if they receive public
funds, the Maine Human Rights Act will prohibit them from
considering sexual orientation in their employment decisions,
and they have said they are unwilling to alter their
employment practices, id., citing Joint Stipulated
Facts ¶¶ 127, 184.
The
Attorney General's arguments about the schools pursuing
state approval are plausible. I am doubtful, for example, of
the plaintiffs' interpretation of the Maine Human Rights
Act. They argue that because section 4554(4) defines employer
to exclude nonprofit religious organizations (except in cases
of disability discrimination) and section 4573-A(2) allows
religious entities to give preference in employment to people
of their own religion and to require applicants and employees
to conform to their religious tenets-neither provision refers
to receipt of public funds-religious schools are altogether
exempt from the prohibition on considering sexual orientation
in employment. But the 2005 law, Public Law of 2005 chapter
10, that added sexual orientation as a prohibited form of
discrimination, stated that “a religious corporation,
association or organization that does not receive public
funds is exempt from this provision with respect to . .
. [e]mployment” (codified as 5 M.R.S.A. §
4553(10)(G) (emphasis added)).[9] It is certainly arguable that
this is a narrower exemption and exempts only religious
organizations that do not receive public funds when it comes
to sexual orientation discrimination. If that is the correct
interpretation of state law and if the schools are firm in
their desire not to change their employment criteria, their
willingness to “consider” applying for approval
for public funding may not go far.
But
even if the plaintiffs cannot show that if I find the statute
unconstitutional the two religious schools to which they
would like to send their children will in fact seek approval
under section 2951(2), I conclude that the Attorney
General's standing argument fails under the First
Circuit's decision in Eulitt. In
Eulitt, the court held that parents do not have
standing to raise the sectarian schools' constitutional
rights, only their own. But Eulitt said that the
parents “do have standing in their own right to seek
global relief in the form of an injunction against the
enforcement of section 2951(2) and a declaration of the
statute's unconstitutionality”:
The [parents] have established standing directly based on
their allegation that section 2951(2) effectively deprives
them of the opportunity to have their children's tuition
at [the sectarian school they chose] paid by public funding.
Even though it is the educational institution, not the
parent, that would receive the tuition payments for a student
whose “educational requirements” application was
approved, it is the parent who must submit such an
application and who ultimately will benefit from the
approval. Because section 2951(2) imposes restrictions on
that approval, the parents' allegation of injury in fact
to their interest in securing tuition funding provides a
satisfactory predicate for standing.
Eulitt, 386 F.3d at 353 (internal citation omitted).
There was no guarantee in Eulitt that the students
would in fact gain access to the sectarian school
there.[10] That is the plaintiffs' position in
this case: they seek the opportunity to find
religious secondary education for their children that would
qualify for public funding.[11] I conclude that under
Eulitt these parents/plaintiffs have
standing.[12]
I turn
therefore to the issue whether Trinity Lutheran has
effectively overruled the latest First Circuit decision to
uphold Maine's educational funding approach, namely
Eulitt. In that connection, it is necessary to
consider my role as a federal trial judge. As a federal trial
judge, I must follow any decision from the Court of Appeals
for the First Circuit directly on point, except in limited
circumstances: “Until a court of appeals
revokes a binding precedent, a district court within
the circuit is hard put to ignore that precedent unless it
has unmistakably been cast into disrepute by
supervening authority.” Eulitt, 386 F.3d at
349 (internal citations omitted) (emphasis added).
Eulitt has certainly not been revoked. Has
Trinity Lutheran unmistakably cast Eulitt
into disrepute? The answer is no. Trinity Lutheran
may well have given good grounds to the plaintiffs to argue
to the First Circuit that that court should
reconsider its Eulitt holding, but it has not
unmistakably cast the decision into disrepute such that I as
a trial judge can ignore Eulitt. Here is why.
Eulitt based its decision on all the relevant United
States Supreme Court decisions up until then, including
Zelman v. Simmons-Harris, 536 U.S. 630 (2002), and
Locke v. Davey, 540 U.S. 712 (2004). Trinity
Lutheran is the only later Supreme Court decision that
bears on the analysis.[13] In Trinity Lutheran, while
holding that Missouri could not disqualify pre-school
programs from a subsidy for shredded tires on their
playgrounds solely because they were operated by a church,
four members of the Court (Justices Roberts, Kennedy, Alito,
and Kagan) said in footnote 3: “This case involves
express discrimination based on religious identity with
respect to playground resurfacing. We do not address
religious uses of funding or other forms of
discrimination.” (emphasis added). Justice Breyer (who
did not concur in the opinion but only in the judgment)
focused on “the particular nature of the ‘public
benefit' here at issue, ” and “would leave
the application of the Free Exercise Clause to other kinds of
public benefits for another day.” 137 S.Ct. at 2027.
That totals a majority of justices (five) who have said that
Trinity Lutheran was not deciding such other
issues.[14] I cannot, as a trial judge, say that
Eulitt therefore has unmistakably been cast into
disrepute. It is certainly open to the First Circuit to
conclude that, after Trinity Lutheran, it should
alter its Eulitt holding that sustained Maine's
educational funding law, [15] but it is not my role to make
that decision. I therefore apply Eulitt to this
controversy and do not decide the post-Trinity
Lutheran merits, nor the standard of review that should
apply in reaching the merits.[16] Based upon the Eulitt
decision, I conclude that Maine's educational funding
program is constitutional.
My
decision not to decide the ultimate question the parties and
amici pose-whether Trinity Lutheran has
changed the outcome in Eulitt-is no great loss for
either the parties or the amici. 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. In the First Circuit, the parties can argue their
positions about how Trinity Lutheran affects
Eulitt. I congratulate them on their written and
oral arguments in this court. I hope that the rehearsal has
given them ...