At Portland, Maine, today, a new front is being opened in the fight to let parents choose where their children go to school. An attorney from the Institute for Justice, a libertarian law firm, will declare that the Institute is challenging a Maine law that bans religious schools from the state’s 100-year-old school choice program. The case marks the first school choice case filed since the decision of the Supreme Court in Zelman v. Simmons-Harris, which held that directing state-funded vouchers to religious schools is constitutional so long as voucher programs remain neutral between religious and non-religious options — meaning that the control is in the parents’ hands, where it clearly ought to be. That decision has greatly strengthened the hand of school choice advocates around the country, including in Washington State, and now it looks set to do so in Maine.

In Maine, every school district has a legal duty to provide an education for its residents’ children through the 12th grade. However, about half of the state’s school districts, because of their rural character, don’t have enough students to warrant maintaining schools that go from kindergarten through the 12th grade. To deal with this problem, Maine has used, in some form or another for 200 years, a system that has come to be known as tuitioning, meaning that parents in districts without public schools can select the school that best suits their child’s needs, public or private, from the surrounding area. The town then pays tuition, capped at the average cost of educating a student in Maine’s public high schools, to the school that the parents choose. Since the passage of a 1981 law though, the only schools not eligible for this program are religious schools. The 1981 law was challenged in 1997 by the Institute for Justice, but the Maine Supreme Court upheld the law in the case of Bagley v. Town of Raymond.

In Bagley, the Maine court admitted that the state’s only justification for upholding the exclusion of religious schools was the existing interpretation of the federal Establishment Clause. And thus did the door open to today’s lawsuit. The decision in Zelman makes it clear that there is no justification for excluding religious schools under the Establishment Clause. Not only that, but excluding religious schools could easily be determined to be viewpoint discrimination, banned by existing High Court precedents regarding the First Amendment, and could also violate the Free Exercise Clause of the First Amendment. The justices who ride the Ninth Circuit Court of Appeals have already ruled, in the wake of Zelman, that a Washington State scholarship program could not deny a student a scholarship simply because he chose to study a religious vocation.

There’s a kind of sweet irony in the fact that this has all come back to Maine. The drive to block state aid to private religious schools was made into a national issue by the former congressman from Maine, James G. Blaine, who became Speaker of the House in the 19th century and was known as the Plumed Knight. He was President Grant’s point man in trying to get an amendment to the American Constitution banning public aid to private schools, an idea motivated by nativist, anti-Catholic sentiment in the country at the time. Defeated, he pressed for amendments to state constitutions. Today, more than half — some 36 — of the states have socalled Blaine Amendments, including New York State. Fortunately, Maine does not, though the law passed in 1981 codifies the bigoted purpose of Blaine. The Institute for Justice is going to give Maine the chance to set a new kind of example for the nation in ending discrimination against families who choose to send their children to religious schools.