Opposition Brief — David Carson, as Parent and Next Friend of O. C., et al., Petitioners v. A. Pender Makin

No. 20-1088

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In The

Supreme Court of the United States

---------------------------------♦--------------------------------DAVID CARSON,

as Parent and Next Friend of O.C., et al.,

Petitioners,

v.

A. PENDER MAKIN, in her Official Capacity as

Commissioner of the Maine Department of Education,

Respondent.

---------------------------------♦--------------------------------On Petition For Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

---------------------------------♦--------------------------------BRIEF IN OPPOSITION FOR RESPONDENT

---------------------------------♦--------------------------------AARON M. FREY

Attorney General

SARAH A. FORSTER

Assistant Attorney General

Counsel of Record

CHRISTOPHER C. TAUB

Chief Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

Six State House Station

Augusta, ME 04333-0006

(207) 626-8800

sarah.forster@maine.gov

christopher.c.taub@maine.gov

Counsel for Respondent

A. Pender Makin

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COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTION PRESENTED

Maine is a lightly populated, predominantly rural

state with less than 180,000 publicly educated K-12

students spread out across 260 local school administrative units (SAUs). More than half of Maine’s SAUs

do not operate public secondary schools. To solve this

problem, Maine uses private schools to deliver a public

education in place of public schools. Because these private schools are entrusted with providing a public education that would otherwise be unavailable, Maine

has a compelling interest in ensuring that the instruction students receive at these private schools is the

substantive equivalent of what students would have

received if they attended a public school. Accordingly,

Maine law permits only nonsectarian schools to receive

public funds for tuition purposes. To be clear, religious

organizations that are willing to provide a nonsectarian education (i.e., an education comparable to the

education students would receive if their community

operated a public school) are eligible to receive public

funds through Maine’s tuition program. It is not the

religious status of an organization that determines

whether they are eligible to receive public funds, but

the use to which they will put those funds that dictates

the result. In excluding sectarian schools, Maine is declining to fund explicitly religious activity that is inconsistent with a free public education.

The question presented is: Does either the First or

Fourteenth Amendment to the United States Constitution require Maine to include sectarian schools in a

ii

QUESTION PRESENTED – Continued

program designed to provide a free public education to

students who live in SAUs which neither operate public schools nor contract for schooling privileges?

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED...................................

i

TABLE OF AUTHORITIES .................................

iv

STATEMENT OF THE CASE..............................

1

A.

Public Education in Maine ........................

1

B.

Prior Legal Challenges to Maine’s Tuition

Program .....................................................

3

The Present Challenge to Maine’s Tuition

Program .....................................................

5

1. The Petitioners ....................................

6

2. The Schools ..........................................

7

a. Bangor Christian Schools (BCS) ....

7

C.

b. Temple Academy (TA) ..................... 10

3. Procedural History .............................. 13

REASONS FOR DENYING THE PETITION ...... 16

I.

The unique facts of this case make it inappropriate for certiorari .............................. 17

II.

Given these unique facts, the Court of Appeals correctly held that Maine’s exclusion

of sectarian schools based on use, not status, is constitutional .................................. 21

III.

There is no “long standing, entrenched

conflict” in the lower courts ....................... 26

IV.

This case presents a serious question as

to whether Petitioners have Article III

standing ..................................................... 28

CONCLUSION..................................................... 35

iv

TABLE OF AUTHORITIES

Page

CASES

Allen v. Wright, 468 U.S. 737 (1984) ...........................31

Anderson v. Town of Durham, 895 A.2d 944 (Me.

2006), cert. denied, 549 U.S. 1051 (2006) ..................5

Bagley v. Raymond Sch. Dep’t, 728 A.2d 127 (Me.

1999), cert. denied, 528 U.S. 947 (1999) ................ 4, 5

Bethel Sch. Dist. No. 403 v. Frazier, 478 U.S. 675

(1986) .......................................................................25

Board of Educ. of Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968) ...........................................27

Boston Five Cents Sav. Bank v. Sec’y of the Dep’t

of Housing and Urban Dev., 768 F.2d 5 (1st

Cir. 1985) .................................................................32

Brown v. Board of Educ., 347 U.S. 483 (1954) ...........24

Carson v. Makin, No. 1:18-CV-00327-DBH (D.

Me. Mar. 15, 2019) .....................................................3

Chittenden Town School District v. Department

of Education 738 A.2d 539 (1999)...........................28

Colorado Christian University v. Weaver, 534

F.3d 1245 (10th Cir. 2008) .......................................27

Desert Water Agency v. U.S. Dep’t of the Interior,

849 F.3d 1250 (9th Cir. 2017) ..................................30

Edwards v. Aguillard, 482 U.S. 578 (1987) ................25

Espinoza v. Montana Department of Revenue,

___ U.S. ___, 140 S. Ct. 2246 (2020) ................ passim

v

TABLE OF AUTHORITIES – Continued

Page

Eulitt v. Maine Dep’t of Educ., 386 F.3d 344 (1st

Cir. 2004) ......................................................... passim

Hallissey v. Sch. Admin. Dist. No. 77, 755 A.2d

1068 (Me. 2000) ................................................... 3, 24

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ..... 26, 27

Linda R.S. v. Richard D., 410 U.S. 614 (1973) ...........31

Locke v. Davey, 540 U.S. 712 (2004) ................. 5, 20, 21

Lujan v. Defenders of Wildlife, 504 U.S. 555

(1992) ..................................................... 29, 30, 32, 33

Nat’l Wrestling Coaches Ass’n v. Dept. of Educ.,

366 F.3d 930 (D.C. Cir. 2004) ............................ 31, 32

Northeastern Florida Chapter of Associated Gen.

Contractors of Am. v. City of Jacksonville, Fla.,

508 U.S. 656 (1993) ........................................... 33, 34

Renal Physicians Ass’n v. U.S. Dep’t of Health &

Human Servs., 489 F.3d 1267 (D.C. Cir. 2007) .......30

San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1 (1973) ............................................................24

Sch. Dist. of Abington v. Schempp, 374 U.S. 203

(1963) .......................................................................25

Simon v. E. Kentucky Welfare Rights Org., 426

U.S. 26 (1976) .................................................... 30, 31

Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999)......... 4, 5

Trinity Lutheran Church of Columbia, Inc. v.

Comer, 137 S. Ct. 2012 (2017)....................... 5, 14, 21

Warth v. Seldin, 422 U.S. 490 (1975) ..........................31

vi

TABLE OF AUTHORITIES – Continued

Page

West Virginia State Bd. of Educ. v. Barnette, 319

U.S. 624 (1943) ........................................................25

Wisconsin v. Yoder, 406 U.S. 205 (1972) .....................24

Zelman v. Simmons-Harris, 536 U.S. 639 (2002) .... passim

CONSTITUTIONAL PROVISIONS

Me. Const. art. VIII, pt. 1, § 1 .......................................1

STATUTES

Me. Rev. Stat. Ann. tit. 5, § 4553(10)(G) .....................10

Me. Rev. Stat. Ann. tit. 5, § 4572(1)(A) .......................10

Me. Rev. Stat. Ann. tit. 20-A, § 2(1) ........................ 1, 23

Me. Rev. Stat. Ann. tit. 20-A, § 2(2) ..............................1

Me. Rev. Stat. Ann. tit. 20-A, § 1001(8) .................. 1, 23

Me. Rev. Stat. Ann. tit. 20-A, § 2701.............................2

Me. Rev. Stat. Ann. tit. 20-A, § 2702.............................2

Me. Rev. Stat. Ann. tit. 20-A, § 2951.............................2

Me. Rev. Stat. Ann. tit. 20-A, § 2951(1), (2), (5) ............2

Me. Rev. Stat. Ann. tit. 20-A, § 2951(2) .............. passim

Me. Rev. Stat. Ann. tit. 20-A, § 5204...........................23

Me. Rev. Stat. Ann. tit. 20-A, § 5204(4) .............. 2, 3, 23

OTHER

Me. Op. Atty. Gen. No. 80-2 (Jan. 7, 1980) ...................4

1

STATEMENT OF THE CASE

A. Public Education in Maine

Maine’s Constitution requires the towns to provide a free public education:

A general diffusion of the advantages of education being essential to the preservation of

the rights and liberties of the people; to promote this important object, the Legislature

are authorized, and it shall be their duty to

require, the several towns to make suitable

provision, at their own expense, for the support and maintenance of public schools; . . . .

Me. Const. art. VIII, pt. 1, § 1. Pursuant to Me. Rev.

Stat. Ann. tit. 20-A, § 2(1), “[i]t is the intent of the Legislature that every person within the age limitations

prescribed by state statutes shall be provided an opportunity to receive the benefits of a free public education.” Further, “[i]t is the intent of the Legislature that

control and management of the public schools shall be

vested in the legislative and governing bodies of local

school administrative units, as long as those units are

in compliance with appropriate state statutes.” Me.

Rev. Stat. Ann. tit. 20-A, § 2(2).

Each school administrative unit (SAU) “shall either operate programs in kindergarten and grades one

to 12 or otherwise provide for students to participate

in those grades as authorized elsewhere [by statute].”

Me. Rev. Stat. Ann. tit. 20-A, § 1001(8). Maine law provides two alternatives for an SAU to provide a public

education to its resident students when it does not

2

operate a public school for one or more grades. First,

an SAU may contract with another public or approved

private school for schooling privileges for some or all of

its resident students in those grades. Me. Rev. Stat.

Ann. tit. 20-A, §§ 2701, 2702. Second, an SAU “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.”

Me. Rev. Stat. Ann. tit. 20-A, § 5204(4).

Me. Rev. Stat. Ann. tit. 20-A, § 2951 contains the

requirements for a private school to be approved to receive public funds for tuition purposes. Those schools

must, inter alia, meet the requirements for basic school

approval contained in statute, agree to comply with

reporting and auditing requirements, and, at the center of the current dispute, be “a nonsectarian school in

accordance with the First Amendment of the United

States Constitution.” Me. Rev. Stat. Ann. tit. 20-A,

§ 2951(1), (2), (5).

The tuition program is not a “school choice” or

“voucher” program akin to the Ohio program reviewed

by this Court in Zelman v. Simmons-Harris, 536 U.S.

639 (2002) or the Montana scholarship program in

Espinoza v. Montana Department of Revenue, ___ U.S.

___, 140 S. Ct. 2246 (2020). Maine’s Law Court has

explained:

The Legislature endeavors to ensure that

each child will be entitled to an opportunity to

3

receive a free public education, not to guarantee children a free education at any public or

private school of their choice. Within the statutory scheme, section 5204(4)’s function is

limited to authorizing the provision of tuition subsidies to the parents of children who

live within school administrative units that

simply do not have the resources to operate

a public school system, and whose children

would otherwise not be given an opportunity

to receive a free public education.

Hallissey v. Sch. Admin. Dist. No. 77, 755 A.2d 1068,

1073 (Me. 2000) (emphasis in original).

Maine has 260 local SAUs, defined by statute as

the state-approved unit of school administration, serving nearly 180,000 students in grades K-12 at public

expense. Pet. App. 5; Joint Stipulated Facts, ¶¶ 3, 4, 20,

Carson v. Makin, No. 1:18-CV-00327-DBH (D. Me. Mar.

15, 2019), ECF No. 25 (hereinafter “JSF”). More than

half of the SAUs do not operate secondary schools. Pet.

App. 5. In 2017-2018, 4,546 secondary students attended private schools through either a contract for

schooling privileges or through the tuition program.

JSF, ¶ 21.

B. Prior Legal Challenges to Maine’s Tuition

Program

Maine’s Constitution has never had a so-called

“Blaine Amendment” or any other provision prohibiting public funds from being provided to religious entities or used for religious purposes. Prior to 1980, some

4

sectarian schools received public funds for tuition purposes. JSF, ¶ 18. In January of 1980, in response to a

request from a legislator, the Attorney General issued

an opinion that thoroughly reviewed the existing First

Amendment jurisprudence and concluded that the

public funding of religious schools would violate the

Establishment Clause. Me. Op. Atty. Gen. No. 80-2

(Jan. 7, 1980). Subsequently, the Legislature enacted

the provision currently codified at Me. Rev. Stat. Ann.

tit. 20-A, § 2951(2) (“Section 2951(2)”). 1981 Me. Laws

2177. More than 15 years later, two separate groups of

parents filed lawsuits challenging the constitutionality

of Section 2951(2). Both the Maine Law Court and the

Court of Appeals for the First Circuit agreed with the

reasoning of the Attorney General and held that the

Establishment Clause prevented Maine from allowing

payments to sectarian schools. Bagley v. Raymond Sch.

Dep’t, 728 A.2d 127 (Me. 1999); Strout v. Albanese, 178

F.3d 57 (1st Cir. 1999). The Bagley parents petitioned

for certiorari. This Court declined to hear the case. 528

U.S. 947 (1999).

That was not the end of the Legislature’s consideration of the use of public tuition dollars for sectarian

education. In 2002, this Court decided Zelman v. Simmons-Harris. Zelman held, for the first time, that it

was possible for a state to develop a so-called “voucher”

program designed to provide school choice that would

allow parents to use public money to pay for sectarian

schools without violating the Establishment Clause.

536 U.S. at 662-63. Presented with the opportunity

to consider public tuition payments for sectarian

5

education anew, a bill was introduced in 2003 to repeal

Section 2951(2). JSF, ¶ 189. The bill was rejected. JSF,

¶ 202.

At around the same time, two sets of parents again

challenged the constitutionality of Section 2951(2),

contending that since Maine’s defense in Bagley and

Strout focused on its concern about violating the Establishment Clause and that concern had been addressed by Zelman, there was no longer a justification

for the continued exclusion of sectarian schools. Again

the parents were unsuccessful – both Maine’s Law

Court and the United States Court of Appeals for the

First Circuit held that while Zelman created the possibility that Maine could design a program that would

allow parents to direct public dollars to sectarian

schools without violating the Establishment Clause,

a second intervening Supreme Court case, Locke v.

Davey, 540 U.S. 712 (2004), made clear that nothing in

the Constitution required Maine to do so. Eulitt v.

Maine Dep’t of Educ., 386 F.3d 344 (1st Cir. 2004); Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006).

The Anderson parents petitioned for certiorari. This

Court again declined to hear the case. 549 U.S. 1051

(2006).

C. The Present Challenge to Maine’s Tuition

Program

In the wake of this Court’s decision in Trinity

Lutheran Church of Columbia, Inc. v. Comer, 137

S. Ct. 2012 (2017), Petitioners filed a complaint in the

6

District of Maine alleging that the tuition program

violates the Free Exercise, Establishment, and Free

Speech Clauses of the First Amendment as well as the

Due Process and Equal Protection Clauses of the Fourteenth Amendment. Pet. App. 12.

1. The Petitioners

David and Amy Carson send their daughter, O.C.

to Bangor Christian Schools (“BCS”). Pet. App. 8. The

Carsons send O.C. to BCS because the school’s Christian worldview aligns with their sincerely held religious beliefs and because of the school’s high academic

standards. Id. The Carsons’ religion neither requires

them to send their daughter to a Christian school nor

prevents them from sending her to a public school. JSF,

¶ 36.

Troy and Angela Nelson’s daughter, A.N., is attending Erskine Academy through the tuition program. JSF, ¶¶ 25, 60. The Nelsons do not dispute the

quality of the secular education their daughter receives at Erskine. JSF, ¶ 61. The Nelsons send their

son, R.N., to Temple Academy (“TA”) because they believe it offers him a great education that aligns with

their sincerely held religious beliefs. JSF, ¶ 62. The

Nelsons would like to send their daughter, A.N., to TA,

because of the quality of education and the discipline,

but cannot afford the cost of tuition for both of their

children. JSF, ¶ 65.

7

2. The Schools

a. Bangor Christian Schools (BCS)

BCS is a sectarian school for purposes of Section

2951(2). JSF, ¶ 68. It was founded in 1970 as a ministry of the Bangor Baptist Church (now Crosspoint

Church), and “is now into its fifth decade of training

young men and women to serve the Lord.” JSF, ¶¶ 6970. The Head of School’s employment agreement is

with Crosspoint Church and he also serves as the Connections Pastor for the church. JSF, ¶¶ 80-81. He reports to Crosspoint’s Senior Pastor and Deacon Board.

JSF, ¶ 76. BCS believes that God has ordained distinct

and separate spiritual functions for men and women,

and men are to be the leaders of the church. JSF, ¶ 79.

BCS teaches children that the husband is the leader of

the household. JSF, ¶ 102.

Prior to admitting any student, BCS officials meet

with the student and his or her family to explain BCS’s

mission and goal of instilling a Biblical worldview in

BCS’ students to try and determine if the school is a

good fit for the student.

JSF, ¶ 86. BCS believes that a student who is homosexual or identifies as a gender other than on his or

her original birth certificate would not be able to sign

the agreement governing codes of conduct that BCS requires as a condition of admission. JSF, ¶ 89.

At BCS, presenting oneself as a gender other

than what is listed on one’s original birth certificate,

whether done on or off school grounds, “may lead to

8

immediate suspension and probable expulsion.” JSF,

¶ 90. If a student presented himself or herself as a gender other than that on his or her original birth certificate and refused to stop presenting himself or herself

as a different gender after conversations and counseling with school staff, the student would not be allowed

to continue attending BCS – just as a student who insisted on drinking every weekend would not be allowed

to continue attending the school. JSF, ¶ 91. If a student

was openly gay and regularly communicated that fact

to his or her classmates, “that would fall under an immoral activity” under BCS’ Statement of Faith and if

“there was no change in the student’s position” after

counseling, the student would not be allowed to continue attending BCS. JSF, ¶ 92. An openly gay student

who regularly communicated that fact in the school environment to his or her classmates would receive counseling, but if the student was “entrenched in this is who

I am, I think it is right and good” the student would

not be allowed to continue attending BCS because “it

clearly goes against [BCS’] Biblical beliefs” – even if

the student was celibate and did not engage in homosexual acts. JSF, ¶ 93.

Among BCS’ educational objectives are to: 1) “lead

each unsaved student to trust Christ as his/her personal savior and then to follow Christ as Lord of

his/her life;” 2) “develop within each student a Christian world view and Christian philosophy of life;” and

3) “prepare each student for the important position in

life of spiritual leadership in school, home, church,

community, state, nation, and the world.” JSF, ¶ 96.

9

Students at BCS are placed on academic probation if

they receive an F in any course, unless the course is

Bible, in which case a grade below 75% results in probation. JSF, ¶ 97. Bible is subject to this more stringent

standard because “that is the primary thing in our

school.” JSF, ¶ 98.

BCS believes that the main reason parents send

their children to BCS is to develop a biblical worldview.

JSF, ¶ 99. BCS does not believe there is any way to

separate the religious instruction from the academic

instruction – religious instruction is “completely intertwined and there is no way for a student to succeed if

he or she is resistant to the sectarian instruction.” JSF,

¶ 101. For example, one of the objectives in the fifthgrade social studies class is to “[r]ecognize God as Creator of the world.” JSF, ¶ 114. One of the objectives in

the ninth-grade social studies class is to “[r]efute the

teachings of the Islamic religion with the truth of God’s

Word.” JSF, ¶ 116. Attending chapel is mandatory. JSF,

¶ 103.

To be a teacher at BCS, one must affirm that

“he/she is a ‘Born Again’ Christian who knows the Lord

Jesus Christ as Savior.” JSF, ¶ 123. Moreover, every

employee of BCS “[m]ust be born again” and “[m]ust be

an active, tithing member of a Bible believing church.”

JSF, ¶ 124. BCS will not hire teachers who identify as

a gender other than on their original birth certificates,

nor will it hire homosexual teachers. JSF, ¶¶ 125-26.

BCS has not indicated that it would participate

in the tuition program, even if Section 2951(2) were

10

eliminated. BCS testified that it would consider accepting public funds only if it did not have to make “any

changes in how it operates.” JSF, ¶ 127.1 Even then,

there is “no way to predict” whether BCS’ governing

body – the Deacon Board of Crosspoint Church – would

approve accepting public funds. JSF, ¶ 128.

b. Temple Academy (TA)

TA is a sectarian school for purposes of Section

2951(2). JSF, ¶ 130. It is an “integral ministry” and

essentially an “extension” of Centerpoint Community

Church. JSF, ¶ 134. Its governing body is Centerpoint’s

Board of Deacons. JSF, ¶ 135. The superintendent of

TA is Centerpoint’s lead pastor. JSF, ¶ 139. While TA

has a school board, it is only advisory and operates

entirely under the authority of Centerpoint’s Board of

Deacons. JSF, ¶¶ 137-38. The Board of Deacons has the

authority to dictate the curriculum for the school. JSF,

¶ 140.

Under TA’s admission policy, a student would most

likely not be accepted if he or she comes from a family

that does not believe that the Bible is the word of God.

1

Accepting public funds would result in a significant change

to how BCS and TA operate – at the very least, they likely would

no longer be free to refuse to hire homosexuals. Under the Maine

Human Rights Act (“MHRA”), it is unlawful to refuse to hire a

person because of his or her sexual orientation. Me. Rev. Stat.

Ann. tit. 5, § 4572(1)(A). While there is an exception that allows

religious organizations to discriminate against homosexuals, it

applies only to religious organizations “that do[ ] not receive public funds.” Me. Rev. Stat. Ann. tit. 5, § 4553(10)(G).

11

JSF, ¶ 152. TA has a “pretty hard lined” written policy

that states that only Christians will be admitted as

students, though exceptions have been made, and

might be made in the future, to admit students of different faiths. JSF, ¶ 153. Under TA’s written admission

policy, “students from homes with serious differences

with the school’s biblical basis and/or its doctrines will

not be accepted.” JSF, ¶ 155. A Muslim family would

have serious differences with TA’s biblical basis and its

doctrines. JSF, ¶ 156. TA will not admit a child who

lives in a two-father or a two-mother family. JSF, ¶ 159.

TA will not admit a student who is homosexual, though

there are students presently enrolled who “struggle”

with homosexuality. JSF, ¶ 157. A child who identifies

with a gender that is different than what is listed on

the child’s original birth certificate would not be eligible for admission. JSF, ¶ 158.

As a condition of enrollment, the student’s parents

must sign a Family Covenant in which they affirm that

they are in agreement with TA’s views on abortion, the

sanctity of marriage, and homosexuality and in which

they acknowledge that TA may request that the student withdraw if “the student does not fit into the spirit

of the institution regardless of whether or not he/she

conforms to the specific rules and regulations.” JSF,

¶ 161. Students in grades 7 to 12 must sign a covenant

in which the student affirms that he or she “will seek

at all times, with the help of the Holy Spirit, to live a

godly life in and out of school in order that Jesus Chris

will be glorified.” JSF, ¶ 162.

12

TA’s educational philosophy “is based on a thoroughly Christian and Biblical world view,” and a “world

view” “is a set of assumptions that one holds about the

basic makeup of his world and forms the basis for all

that one does and thinks.” JSF, ¶ 144. TA’s “academic

growth” objectives include “provid[ing] a sound academic education in which the subject areas are taught

from a Christian point of view” and “help[ing] every

student develop a truly Christian world view by integrating studies with the truth of Scripture.” JSF, ¶ 146.

TA provides a “biblically-integrated education,”

which means that the Bible is used in every subject

that is taught. JSF, ¶ 164. Teachers “are expected to integrate Biblical principles with their teaching in every

subject taught at Temple Academy.” JSF, ¶ 168. TA

urges students to obey the Bible and accept Christ as

their personal savior. JSF, ¶ 174. Students are required to attend a religious service once a week. JSF,

¶ 163.

A person must be a born-again Christian to be eligible for all staff positions at TA, including custodial

positions. JSF, ¶ 179. Affirming that “he/she is a bornagain Christian who knows the Lord Jesus Christ as

Savior” is a necessary qualification to be a teacher. JSF,

¶ 176. Homosexuals are not eligible for employment as

teachers at TA. JSF, ¶ 177. In their employment agreements, teachers must acknowledge that the Bible says

that “God recognize[s] homosexuals and other deviants as perverted” and that “[s]uch deviation from

Scriptural standards is grounds for termination.” JSF,

¶ 178.

13

TA would refuse to accept public money if it meant

that it could no longer exclude homosexuals from

teaching positions. JSF, ¶ 184. And even if TA had “in

writing” that it would not have to alter its admission

standards, hiring criteria, or curriculum, it would then

only consider whether to accept public money. JSF,

¶ 182.

3. Procedural History

The case was submitted on cross-motions for judgment on the stipulated record, and the District Court

rendered judgment in the Commissioner’s favor, concluding that the First Circuit’s Eulitt decision “has certainly not been revoked” and that because there have

been no material changes to the tuition program since

Eulitt, that precedent controlled. Pet. App. 13.

Petitioners appealed to the Court of Appeals for

the First Circuit. Pet. App. 14. After the appeal had

been fully briefed and argued, this Court issued its decision in Espinoza. Pet. App. 14-15. As a result, the

Court of Appeals was fully able to consider the impact

of Espinoza on the pending appeal. The Court of Appeals began its analysis by acknowledging Espinoza as

offering “the clearest guidance as to what constitutes,

with respect to doling out aid, solely status-based religious discrimination as opposed to discrimination

based on religious use.” Pet. App. 32-33. Per Espinoza,

the critical feature of status-based discrimination is

that it is based “solely on the aid recipient’s affiliation

with or control by a religious institution.” Pet. App. 33.

14

The Court of Appeals then turned to the specifics

of the tuition program and concluded that it did not

constitute status-based discrimination for three reasons. First, the testimony of former Commissioner

Hasson, affirmed by Commissioner Makin and the

Maine Attorney General’s Office in their briefing,

stated that while a school’s affiliation or association

with a church or religious institution is a potential indicator of a sectarian school, it is not dispositive. Pet.

App. 35. “The Department’s focus is on what the school

teaches through its curriculum and related activities

and how the material is presented.” Id. Second, the

plain language of Section 2951(2) itself does not

make control or affiliation dispositive, and the inclusion of the trailing phrase “in accordance with the

First Amendment” serves to ensure, in light of Espinoza, that it is not. Pet. App. 36-37. Finally, while the

Court of Appeals recognized the potential for a restriction that was nominally based on use to be one

based on status in disguise, the Court concluded that

the record supported the Commissioner’s representations and the Petitioners had not developed an argument otherwise. Pet. App. 38.

Turning next to the contention that the distinction

between status and use is not relevant from a Constitutional perspective, the Court of Appeals noted that

plaintiffs pointed to no controlling Supreme Court authority on that point. Pet. App. 40. Nonetheless, the

Court carefully examined Justice Gorsuch’s concurrences in both Trinity Lutheran and Espinoza in

which he questions the legitimacy of such a distinction

15

because the Free Exercise Clause protects the religious

in both their inward beliefs (i.e., status) and their exercise (i.e., use). Pet. App. 41. The Court of Appeals

agreed with Justice Gorsuch’s premise with respect to

the scope of the Free Exercise Clause, but concluded

that the tuition program’s limitations serve to allay his

concerns because “it does not target any religious activity apart from what the benefit itself would be used

to carry out.” Pet. App. 42. As “nothing in either one of

Justice Gorsuch’s concurrences suggests that the government penalizes a fundamental right simply because it declines to subsidize it,” the Court found that

it must first determine the “baseline” benefit set by the

tuition program in order to determine “whether the

‘nonsectarian’ requirement merely reflects Maine’s refusal to subsidize religious exercise . . . or instead penalizes religious exercise.” Id.

In this regard, the Court “found significant” that

the tuition program “is designed to ‘ensur[e],’ . . . that

students who cannot get a public school education from

their own SAU can nonetheless get an education that

is ‘roughly equivalent to the education they would receive in public schools.’ ” Pet. App. 43. The Court also

“found significant” that Maine’s interest in aligning

the tuition program with its religiously neutral public

education system was “wholly legitimate” as “there is

no question that Maine may require its public schools

to provide a secular education rather than a sectarian

one.” Pet. App. 43-44 (emphasis in original). The Court

concluded that “given the baseline that Maine has set

through the benefit provided by the tuition assistance

16

program, the plaintiffs in seeking publicly funded ‘biblically-integrated’ or religiously ‘intertwined’ education are not seeking ‘equal access’ to the benefit Maine

makes available to all others – namely the free benefits

of a public education.” Pet. App. 44 (emphasis in original). In other words, Maine’s tuition program does not

act as a penalty for religious exercise, it merely declines to subsidize it.

---------------------------------♦---------------------------------

REASONS FOR DENYING THE PETITION

Nothing about this case makes it appropriate for

certiorari. Factually, Maine’s tuition program is nearly

unique in its use of private schools in place of public

schools, as opposed to as an alternative to them. Nor is

this a case involving an overarching “Blaine Amendment” or “no aid” clause or where there is any evidence

of religious animus. It is simply a situation where

Maine is using private schools to provide a free public

education to a small subpopulation of students who

would otherwise be without one.

Given the unique facts of Maine’s tuition program,

the Court of Appeals correctly held that the differential

treatment of sectarian schools based on religious use,

not religious status, is constitutional. The purpose of

the program is to engage private schools willing to deliver a specific service: an education that is substantively akin to that which a student would receive if

their community operated a public school. A religious

organization that is willing to provide the service

17

sought is treated no differently than any other organization. The exclusion in Section 2951(2) prevents only

schools that are interested in providing something else

– a sectarian education, which the two schools to which

the Petitioners seek to send their children openly

acknowledge is different than a public education, or

even a secular private education – from participating

in the tuition program.

Coming just four months after the Espinoza decision, the decision of the Court of Appeals below is the

first, and as of this date the only, final appellate decision to apply Espinoza to a public program that allows

religious entities to participate but disallows religious

use of public funds. Nor is there a long-standing division of authority as Petitioners allege. Contrary to

Petitioners’ suggestion, the Court of Appeals has faithfully applied precedent each time it has addressed the

tuition program. Lastly, the inability of the Petitioners

to identify a single sectarian school likely to participate in the tuition program raises a significant issue of

standing in this matter.

I.

The unique facts of this case make it inappropriate for certiorari.

In their rush to encourage the Court to examine,

and eliminate, the distinction between differential

treatment based on religious status versus religious

use, Petitioners largely ignore the facts. Maine has created a unique solution to an unusual situation: a small

number of Maine families would otherwise have no

18

ability to access a public education because the SAU in

which they reside has neither built a public school, nor

contracted with a nearby public or approved private

school. In the absence of a Blaine Amendment or other

state constitutional prohibition, Maine’s Legislature

has carefully considered the evolution of the law with

respect to the use of public funds for sectarian education. Even if the Constitution does not prohibit including religious schools in the tuition program, Maine has

continued the nonsectarian requirement not because

of any animus toward religion, but because of what it

believes to be the critical features of a system of public

education: diversity, tolerance, and inclusion.

These factors make this case an outlier, and unworthy of further review. Any decision in this matter

will be of little consequence outside of Maine as there

is no reason to anticipate that any other state will close

its public schools in order to replace them with private

schools as opposed to adopting or continuing “voucher”

or “school choice” programs that have been fully addressed, and approved, by this Court in Zelman and

Espinoza.

Maine is one of only two states (Vermont is the

other) that use private schools in place of, and not as

an alternative to, public schools.2 The tuition program

2

While 18 states – Vermont is not among them – have filed

an amicus brief in support of Petitioners, they clearly misunderstand Maine’s tuition program. They state: “Like Maine, many of

these States partner with private schools to empower parents to

make the educational choices they think best for their families.”

But as a matter of fact, none of them have a program “like Maine”

19

ensures that students of compulsory school age in an

SAU that neither operates a public secondary school

nor contracts for schooling privileges have a free public

education available to them. The tuition program is not

a “voucher” program or another vehicle for school

choice, such as the scholarship program in Espinoza,

where parents are given money to spend on the private

education of their choosing as an alternative to a public education. Maine’s program is narrowly limited

both in the scope of the recipients – families who live

in SAUs without public schools or contracts for schooling privileges – and in the scope of the benefit – an education that is substantively similar to the education

provided by a public school.

Unlike Espinoza and other cases addressing socalled “Blaine Amendments” or “no aid” clauses, this

matter involves a single public program with a specific

limitation that the record reflects has nothing to do

with the religious hostility or animus connected with

those constitutional restrictions. The tuition program

is the result of a specific legislative determination that

a sectarian education is not equivalent to a public education. The tuition program is not designed as an

alternative to Maine’s public education system but as

a part of it. In the wake of this Court’s decision in

Zelman that a State could design a voucher program

that included sectarian schools without violating the

Establishment Clause, the Maine Legislature specifically considered whether to repeal Section 2951(2)

as described above, as outlined in Maine’s statutes, and as interpreted by Maine’s highest court.

20

and decided not to. Evidence of the Legislature’s rationale is found in statements made by legislators

while considering (and rejecting) a repeal of the exclusion. JSF, ¶¶ 189-02 (“Bringing all of our children together, no matter what their religious affiliation or

background, promotes democracy, tolerance, and what

is best in all of us.” “A publicly funded education system

works best when the education is one of diversity and

assimilation, religiously neutral, and not a ‘separate

and sectarian’ one.”)

Legislative statements about not wanting to “fund

discrimination” or the teaching of “intolerant” views do

not demonstrate a hostility to religion, as suggested

below by the Petitioners. Rather, they simply demonstrate the view that public schools should be open to

all, and that a public education is both defined by inclusion and tolerance, and reflective of the diversity of

our students and our community. BCS and TA candidly

admit that they discriminate against homosexuals, individuals who are transgender, and non-Christians

with respect to both who they admit as students and

who they hire as teachers and staff. This case is not

about whether the schools have the right to behave in

this manner as it is beyond dispute that they do; it is

only about whether Maine must fund their educational

program as the substantive equivalent of a public education. The Court of Appeals below reiterated what it

found in Eulitt, “[t]here is not a shred of evidence than

any . . . animus fueled the enactment of the challenged

Maine statute” and in reference to Locke’s “test for

smoking out an anti-religious animus . . . the statute

21

here passes . . . with flying colors.” Pet. App. 50-51 quoting 386 F.3d at 355.

II.

Given these unique facts, the Court of Appeals correctly held that Maine’s exclusion

of sectarian schools based on use, not status,

is constitutional.

This case stands not as an example of why the status/use distinction is meaningless or should be eliminated, but of why it is a necessary and appropriate

example of the “play in the joints” articulated by this

Court in Locke, Trinity Lutheran, and Espinoza. Absent

the ability for a state to decline to fund explicitly religious uses of public funds, while recognizing the right

of otherwise qualified religious applicants to participate in a public benefit program on exactly the same

terms as non-religious applicants in an area as significant as public education, there is no play at all. The

joints have snapped shut.

As the Court of Appeals explained, Espinoza is

clear that status-based discrimination occurs when a

restriction is based “solely on the aid recipient’s affiliation with or control by a religious institution.” Pet.

App. 33; Espinoza, 140 S. Ct. at 2261 (“[a] State need

not subsidize private education, but once a state decides to do so, it cannot disqualify some private schools

solely because they are religious” (emphasis added)).

However, Espinoza explicitly leaves open the alternative: a program that does not focus “solely” on status,

but instead on the use of the public funds. The tuition

22

program is just such a program. As then-Commissioner Hasson stated in response to Petitioners’ interrogatories,

In making the determination whether a particular school is in compliance with Section

2951, the Department considers a sectarian

school to be one that is associated with a

particular faith or belief system and which,

in addition to teaching academic subjects,

promotes the faith or belief system with which

it is associated and/or presents the material

taught through the lens of that faith. While

affiliation or association with a church or religious institution is one potential indicator of a

sectarian school, it is not dispositive. The Department’s focus is on what the school teaches

through its curriculum and related activities,

and how that material is presented.

Pet. App. 35 (emphasis added). Sectarian schools are

not denied funds because of who they are, but because

of what they would do with the money – use it to further the religious purposes of inculcation and proselytization. These are purposes that BCS and TA candidly

acknowledge. JSF, ¶¶ 95, 96, 104, 145, 147, 171, 174.

Petitioners never challenged the Commissioner’s

statement, and only belatedly combed the record in order to dredge up a situation where the Department

even had to make a determination as to whether a

school was nonsectarian. Neither BCS nor TA has any

doubt that they are sectarian schools.

23

Because public benefits come in myriad shapes

and forms, in order to properly analyze the constitutionality of Maine’s tuition program, it is essential to

start by clearly defining the public benefit bestowed by

the program: a free public education. Me. Rev. Stat.

Ann. tit. 20-A, §§ 2(1), 5204. It is equally important to

state what Maine’s tuition program is not: a “voucher”

or “school choice” program where parents are given the

opportunity to select a school other than the local public school that their child would otherwise attend. It is

this distinction between Maine’s use of secular private

schools as de facto public schools and the opportunity

to use public funds to choose an alternative to an otherwise available public school that justifies Maine’s decision to exclude sectarian schools.

Each school administrative unit in Maine is

charged with providing a public education in one of

three ways: operating a public school, contracting with

a public or approved private school for schooling privileges, or paying tuition to the public or approved private school of the parent’s choice. Me. Rev. Stat. Ann.

tit. 20-A, §§ 1001(8), 5204(4). There is no dispute that

Maine students who receive a public education from a

public secondary school or pursuant to a contract between their SAU and a public or approved private

school receive a non-sectarian education. If students

reside in an SAU that operates a public high school or

that has a contract for secondary school privileges, the

students are not entitled to a sectarian education at

public expense. With respect to students who live in an

SAU that neither operates a public high school nor

24

contracts for schooling privileges, Maine’s Supreme Judicial Court has explained that the tuition program is

“limited to authorizing the provision of tuition subsidies to the parents of children who live within school

administrative units that simply do not have the resources to operate a public school system, and whose

children would otherwise not be given an opportunity

to receive a free public education.” Hallissey, 755 A.2d

1068 at 1073. Thus, the tuition program is simply a vehicle for students in this third category to receive a free

public education that is consistent with, and no

broader than, the benefit provided by the first two options. As there is no dispute that students in the first

two categories cannot and do not receive sectarian instruction at public expense, Section 2951(2) applies

that same rule to the third.

Maine’s tuition program is the result of carefully

considered legislative judgment as to what constitutes

a public education. No case has ever held, or even

suggested, that a state’s decision to define a public

education to mean a secular education raises any constitutional concerns. This is unsurprising given the

considerable state interest in public education as well

as the primary role of the state in this area. Brown v.

Board of Educ., 347 U.S. 483, 493 (1954) (describing

public education as “perhaps the most important function of state and local governments”); Wisconsin v.

Yoder, 406 U.S. 205, 213 (1972) (“providing public

schools ranks at the very apex of the function of a

State”); San Antonio Indep. Sch. Dist. v. Rodriguez, 411

U.S. 1, 39 (1973) (with respect to public education, a

25

state’s efforts “shall be scrutinized under judicial principles sensitive to the nature of the State’s efforts and

to the rights reserved to the States under the Constitution”).

A free public education has long been equated

with a secular instruction. See Sch. Dist. of Abington v.

Schempp, 374 U.S. 203, 226 (1963); West Virginia State

Bd. of Educ. v. Barnette, 319 U.S. 624, 637 (1943) (“Free

public education, if faithful to the ideal of secular instruction . . . will not be partisan or enemy of any . . .

creed”); Edwards v. Aguillard, 482 U.S. 578, 584 (1987)

(striking down religiously motivated instruction in

public secondary schools and stating that “[t]he public

school is at once the symbol of our democracy and the

most pervasive means for promoting our common destiny. In no activity of the State is it more vital to keep

out divisive forces than in its schools. . . .” (citation

omitted)); see also Bethel Sch. Dist. No. 403 v. Frazier,

478 U.S. 675, 681 (1986) (noting that the objectives of

public education are to “inculcate the habits and manners of civility” which “must, of course, include tolerance of divergent . . . religious views. . . .”).

In contrast, “voucher” programs such as the one

reviewed by this Court in Zelman and the scholarship

program in Espinoza involve a different type of program: one that provides not the basic access to a free

public education, or that reflects the substance of a

public education at all, but the option to use public

funds to reject or avoid the free public education offered by a local public school in favor of some alternative. Instead of equalizing educational access to a

26

public education, it represents a legislative determination to allow parents to reject it while receiving financial support for their preferred alternative.

III. There is no “long standing, entrenched conflict” in the lower courts.

The decision of the Court of Appeals does not conflict with the decision of any other appellate court.

Coming just four months after the Espinoza decision,

it is the first, and as of this date the only, final appellate

decision to apply Espinoza to a public program that allows religious entities to participate but disallows religious use of public funds. And it does so by paying strict

attention to Espinoza and applying it to a set of circumstances that is almost incapable of repetition.

Petitioners’ attempt to demonstrate a long-standing

split on the issue of use-based exclusions in studentaid programs fails. Neither of the two cases they cite

for one arm of the split even fully presents the issue.

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) predates all three challenges to Maine’s tuition program

yet has never been used as part of the argument made

by the complaining parents. This is hardly surprising

since it does not concern the religious use of public

funds at all. Hartmann involved an Army regulation

that prohibited on-base family childcare providers

from including religious information or activities as

part of their care. Id. at 977. The Sixth Circuit explained that despite the government’s attempt to tie

the childcare providers to the Army financially, there

27

was no evidence that any of the program’s funding actually went from the Army to the providers. Id. at 982.

Any other benefits the providers received from the

Army were either generally available to all servicemembers, such as housing, or consistent with longstanding precedent with respect to indirect aid to sectarian schools, such as reimbursement for meals from

the USDA (akin to participation in the school lunch

program) or the use of a “community toy box” (akin to

a state loan of textbooks to parochial schools). Id. at

982-83 (citing Board of Educ. of Central Sch. Dist. No.

1 v. Allen, 392 U.S. 236 (1968)). With no public funds in

play, there was no basis to even consider the issue of

religious use.

Colorado Christian University v. Weaver, 534 F.3d

1245 (10th Cir. 2008) is also unavailing. While the Colorado program at issue did involve the use of public

funds, the crux of the problem according to the Tenth

Circuit was that it attempted to distinguish between

sectarian and pervasively sectarian institutions,

leading the court to conclude that it impermissibly

discriminated among religions and involved unconstitutionally intrusive scrutiny of religious beliefs and

practices. Id. at 1256. The Tenth Circuit explicitly

distinguished the First Circuit’s Eulitt decision as

“[t]he program at issue in Eulitt excluded all religious

schools without discriminating among them or (so far

as Eulitt discusses) using any intrusive inquiry to

choose among them. By contrast, Colorado’s system

does both.” Id. at 1256-57 (internal citation omitted).

In sum, neither of the circuit decision cited by

28

Petitioners conflicts with either the First Circuit in

Eulitt and below, or with the Supreme Court of Vermont in Chittenden Town School District v. Department of Education 738 A.2d 539 (1999), both of which

held that it is constitutionally permissible for states to

authorize public funding for private schools in lieu of

public schools while simultaneously refusing to fund

explicitly religious activities – i.e., sectarian education.

Finally, given that the decision in Espinoza is so

new that the Court of Appeals’ decision below is the

only final appellate decision to apply it in the context

of a public benefit program that distinguishes based on

religious use and not religious status, this issue would

benefit from being allowed to percolate among the

lower courts. While Maine’s tuition program is sui

generis and the lower courts are unlikely to have a

factually similar program before them, it is likely that

challenges to other public benefit programs that distinguish among potential recipients based on religious

use will arise.

IV. This case presents a serious question as to

whether Petitioners have Article III standing.

It is unlikely that either of the schools to which

Petitioners wish to send their children would be willing to participate in Maine’s tuition program. Nor is

there evidence in the record that any sectarian secondary school is likely to participate in the tuition program if Section 2951(2) is eliminated. The failure of

29

Petitioners to identify a single sectarian school likely

to participate in the tuition program renders them unable to establish standing.

“[T]he core component of standing is an essential

and unchanging part of the case-or-controversy requirement of Article III.” Lujan v. Defenders of Wildlife,

504 U.S. 555, 560 (1992). “[T]he irreducible constitutional minimum . . . [requires that] . . . it must be

‘likely,’ as opposed to merely ‘speculative,’ that the injury will be ‘redressed by a favorable decision.’ ” Id. at

560-61 (citations omitted).

When the plaintiff is itself the subject of the challenged governmental action, there is usually “little

question” that a judgment preventing the action will

redress the injury. Id. at 561-62.

When, however . . . a plaintiff ’s asserted injury arises from the government’s allegedly

unlawful regulation (or lack of regulation) of

someone else, much more is needed. In that

circumstance, causation and redressability

ordinarily hinge on the response of the regulated (or regulable) third party to the government action or inaction – and perhaps on

the response of others as well. The existence

of one or more of the essential elements of

standing “depends on the unfettered choices

made by independent actors not before the

courts and whose exercise of broad and legitimate discretion the courts cannot presume

either to control or to predict,” . . . and it becomes the burden of the plaintiff to adduce

facts showing that those choices have been or

30

will be made in such manner as to produce

causation and permit redressability of injury. . . . Thus, when the plaintiff is not himself the object of the government action or

inaction he challenges, standing is not precluded, but it is ordinarily “substantially more

difficult” to establish.

Id. at 562 (citations omitted) (emphasis in original).

“[T]he Supreme Court has consistently said that a

plaintiff . . . lacks standing if, notwithstanding the relief sought, the third parties would retain discretion to

continue their harmful behavior or, alternatively, if it

is too speculative to conclude that they would modify

their behavior in the way the plaintiff desires.” Desert

Water Agency v. U.S. Dep’t of the Interior, 849 F.3d 1250,

1257 (9th Cir. 2017); see also Renal Physicians Ass’n v.

U.S. Dep’t of Health & Human Servs., 489 F.3d 1267,

1274 (D.C. Cir. 2007) (referring to “Lujan as well as

several other Supreme Court decisions holding that

standing . . . cannot be founded merely on speculation

as to what third parties will do in response to a favorable ruling”).

For example, in Simon v. E. Kentucky Welfare

Rights Org., 426 U.S. 26 (1976), indigents and representative organizations sought to challenge an

Internal Revenue Service rule giving favorable tax

treatment to a nonprofit hospital that offered only

emergency room services to indigents. They argued

that the IRS rule was unlawful and that hospitals are

not entitled to favorable tax treatment unless they

broadly serve the indigent. Id. at 33. The “injury” that

31

plaintiffs alleged was that the tax rule encouraged hospitals to deny non-emergency services to indigents,

and they argued that striking down the ruling would

discourage the denial of services. Id. at 42.

The Court held that this was insufficient to establish standing as it was “purely speculative” whether

the denials of service could be traced to the tax treatment or whether “court’s remedial powers in this suit

would result in the availability to respondents of such

services.” Id. at 42-43. Because the plaintiffs’ complaint

did not allege facts suggesting a “substantial likelihood” that a favorable judgment would provide them

with the medical care they sought, the Court held that

the complaint should be dismissed for lack of standing.

Id. at 44-46; see also Allen, 468 U.S. at 737 (plaintiffs

lacked standing where it was “entirely speculative”

whether withdrawal of tax exemption would cause racially discriminatory private schools to change their

policies); Warth v. Seldin, 422 U.S. 490 (1975) (plaintiffs did not have standing to challenge a town zoning

ordinance that allegedly prevented the construction of

affordable housing because there was no evidence that

striking down the ordinance would cause builders and

developers to construct such housing); Linda R.S. v.

Richard D., 410 U.S. 614 (1973) (mother lacked standing to bring action challenging constitutionality of

child support statute because even if mother were

granted the requested relief and father was subject to

prosecution, it was speculative whether this would result in the father paying child support); Nat’l Wrestling

Coaches Ass’n v. Dept. of Educ., 366 F.3d 930 (D.C. Cir.

32

2004) (plaintiffs lacked standing to challenge Title IX

policy because even if policy is vacated, decision to

eliminate or curtail wrestling opportunities remained

the independent decisions of the educational institutions).

The Petitioners bear the burden of proving each

element of the standing inquiry. Lujan, 504 U.S. at

561. Because the matter was decided below on crossmotions for judgment on a stipulated record, Petitioners were required to identify specific facts in the

stipulated record that support a finding that a sectarian school to which they would send their children

was “likely” to accept public funds. Id.; see also Boston

Five Cents Sav. Bank v. Sec’y of the Dep’t of Housing

and Urban Dev., 768 F.2d 5, 11-12 (1st Cir. 1985) (difference between a decision on a stipulated record and

motion for summary judgment is that the former allows the judge to decide any issue of material fact they

discover while the latter does not). They did not make

such a showing with respect to the two sectarian

schools to which Petitioners send, or wish to send, their

children. To the contrary, both schools testified that

they would not participate in the program if it required

them to change anything about how they operate, and

even if they did not have to change a thing, they would

only consider accepting public funds. JSF, ¶¶127-28,

182, 184. Nor did Petitioners make such a showing

with respect to any other sectarian school.

The Court of Appeals erroneously concluded that

Petitioners had standing. The Court focused on what it

viewed as a critical distinction between the Petitioners

33

and the complaining parties in the cases cited by the

Respondent: the Petitioners’ standing rested on their

“lost [ ] ‘opportunity’ to find religious secondary education for their children that would qualify for public

funding.” Pet. App. at 18 citing Eulitt, 386 F.3d at 353.

As a result, the Court concluded, the mere restoration

of that opportunity, regardless of whether it ultimately

led to the Petitioners actually finding a sectarian secondary school that would participate in the tuition program, provided the redressability required by law.

The case primarily relied upon by the Court of Appeals, Northeastern Florida Chapter of Associated General Contractors of America v. City of Jacksonville, 508

U.S. 656 (1993), is inapposite, as it does not present a

factually similar situation. The case involved a challenge by a group of contractors to a city ordinance giving preference to minority-owned businesses in the

award of city contracts. This Court held that to have

standing, the plaintiff did not need to prove that its

members would actually receive a contract if the ordinance were struck down but instead “need only demonstrate that it is able and ready to bid on contracts and

that a discriminatory policy prevents it from doing so

on an equal basis.” Id. at 666. Unlike the present case,

the plaintiff contractors were the objects of the regulation, and, in such cases, there is “ordinarily little question” that a favorable judgment will redress the injury.

Lujan, 504 U.S. at 561-62.

The Court of Appeals cited Northeastern Florida

Chapter with approval for detailing “a number of ‘cases

[that] stand for the following proposition: When the

34

government erects a barrier that makes it more difficult for members of one group to obtain a benefit than

it is for members of another group, a member of the

former group seeking to challenge the barrier need not

allege that he would have obtained the benefit but for

the barrier in order to establish standing’.” Pet. App. at

21. But the Court failed to recognize that in the current

matter, it is the sectarian schools, not the Petitioners,

that are akin to the members of the “former group,” i.e.,

the plaintiff contractors. Northeastern Florida Chapter

leads to the conclusion that the sectarian schools

would have standing to challenge Section 2951(2) even

if they could not identify a parent who wanted to use

the tuition program to send their child to a sectarian

school. It does not support the proposition that Petitioners have standing despite being unable to identify

a single sectarian school that is “likely” to participate

in the tuition program. Petitioners have failed to establish standing, and the Court should decline to hear this

case on that basis.

---------------------------------♦---------------------------------

35

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted,

AARON M. FREY

Attorney General

May 21, 2021

SARAH A. FORSTER

Counsel of Record

Assistant Attorney General

CHRISTOPHER C. TAUB

Chief Deputy Attorney General

OFFICE OF THE ATTORNEY GENERAL

6 State House Station

Augusta ME 04333-0006

(207) 626-8800

sarah.forster@maine.gov

christopher.c.taub@maine.gov