A federal lawsuit is once again challenging Maine’s limits on sending public money to religious schools.

The Roman Catholic Diocese of Portland, Auburn’s Saint Dominic Academy, and parents Keith and Valori Radonis of Whitefield are suing Maine officials over limits imposed on secular and religious private schools participating in a state program that allows parents to use public money to send their children to approved private schools if there is no public school available or if they live in towns that have maintained school choice.

The federal lawsuit filed Tuesday argues that the program discriminates against religious schools by making them ineligible to receive public money because of their religious practices and teachings, including those related to sexual orientation and gender identity. The lawsuit also says Maine has used legislation to “outmaneuver” the Supreme Court.

The Maine Human Rights Act prohibits discrimination based on race, gender, sexual orientation, ethnicity and disability, and applies to all private schools that accept public money.

St. Dominic and the Radonises filed the lawsuit against Maine Department of Education Commissioner Pender Makin and the five commissioners on the Maine Human Rights Commission.

For decades, religious schools were excluded from the Maine program that allows parents to use public money to send their children to private schools if there are no public options available. The state had argued that allowing public money to flow to private religious schools violated the U.S. Constitution’s prohibition of government endorsement of religion.

But one year ago, the U.S. Supreme Court ruled that Maine could not bar religious schools from participating in the tuition program. The Supreme Court said it its June 2022 ruling in Carson v. Makin that prohibiting religious schools from participating in the program violated the constitutional right to religious exercise.

Despite the landmark ruling, not much changed in Maine because nearly all religious schools remain ineligible under a state anti-discrimination law. Before the court handed down its ruling, Maine lawmakers changed the state’s Human Rights Act to ensure that religious schools would have to abide by its rules on sexual orientation and gender identity and allow equal religious expression by students of all religions in order to qualify for state funding. The law previously exempted religious schools from those rules.

Under the anti-discrimination law, most of the state’s religious schools would likely be ineligible to participate in the program. Among other things, schools would have to commit to non-discriminatory hiring and enrollment practices, allow students to express gender-identities different than those assigned at birth and allow students of religious beliefs different than those taught at the school an equal opportunity to pray and practice religion.

Only one religious school, Cheverus, has applied to participate in the program since the Carson v. Makin ruling. Cheverus, a Jesuit school in Portland, was approved this fall to receive public money.

Roughly 5,000 Maine children live in districts that neither have a public school nor a contract with a school in a nearby district. The state says nearly all attended one of 11 private schools known as “town academies,” like Thornton Academy in Saco and Fryeburg Academy in Fryeburg. The Maine Department of Education said another 200 students receive public funds each year to attend other private schools through the tuition program.

It is not clear how many students in Maine attend religious schools.

The Radonises and St. Dominic say the changes to the Human Rights Act make it impossible for religious schools to both participate in the program and adhere to and teach their religious beliefs, and strip the ability of families like the Radonises to use public money to send their children to schools that align with their beliefs.

The changes to the Maine Human Rights Act limit the ability of a Catholic school receiving tuition money to provide a Catholic education and force the schools to let the state decide what is taught and how, said Adele Keim, a lawyer from Becket, the New Hampshire law firm specializing in religious freedom that is representing St. Dominic and the Radonises.

A spokesperson from the law firm said both the Radonises and representatives from St. Dominic were not available for an interview.

The Roman Catholic Diocese of Portland did not respond to questions about the lawsuit on Wednesday.

Department of Education spokesperson Marcus Mrowka said Makin could not comment on pending litigation.

BATTLE OVER SCHOOL CHOICE

The lawsuit comes at a time of fiery and persistent legal battles and debate in Maine and nationwide over school choice and the rights of parents to receive public money to send their children to religious schools.

Crosspoint Church in Bangor, which oversees the Bangor Christian School, filed a similar lawsuit in March, alleging in federal court that changes to the state’s human rights law limits religious schools from participating in the tuition program by forcing them to choose between following their religious beliefs or aligning their gender identity policies with the Human Rights Act.

Around the country, Republican-led states have created programs that allow families to use public funds to pay for private secular and religious schools through voucher programs. This month, Oklahoma approved the nation’s first religious charter school. Charter schools are independently run but funded by taxpayers.

School choice is not new. It’s been around since at least 1954, when southern states adopted voucher programs in the wake of the Supreme Court’s Brown v. Board of Education ruling, which made school segregation illegal. Over the decades since, its popularity has ebbed and flowed. The school choice movement has seen landmark success in recent years.

“Few people thought 2022 could be as good for students as 2021 – the Year of Educational Choice. But it was,” Robert Enlow, the president and CEO of the pro school choice nonprofit EdChoice, wrote in a 2023 report outlining the state of school choice in America.

There are 73 school choice programs across 32 states, according to the report. There were 36 in 2012 and 12 in 2002.

The Radonises have three children. Two use tuition money to attend Erskine Academy in South China and one attends St. Michael Catholic Parish in Augusta. But, as faithful Catholics, they want their children to attend a Catholic school, the complaint says.

St. Dominic, which serves 251 students in grades six through 12, would like to participate in the tuition program and continue to run its school as it sees fit, the complaint states.

St. Dominic has not officially been ruled ineligible for the funds because it has not yet applied, though it soon could.

Applications for schools to participate in the tuition program open on July 1 and close on Aug. 31. According to the lawsuit, St. Dominic is prepared to apply by deadline and the Radonises’ daughter is prepared to attend in the fall using public tuition funds.

The Roman Catholic Diocese of Portland, the Radonises and St. Dominic asked in the lawsuit that the court stop Maine from excluding religious schools from the program by requiring the schools to abide by the Maine Human Rights Act.