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Bagley v. Raymond School Department
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MAINE SUPREME JUDICIAL COURT					Reporter of Decisions
Decision:	1999 ME 60
Docket:	Cum-98-281		
Argued:	November 2, 1998
Decided:	April 23, 1999

Dissent:   	CLIFFORD, 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.). 
	[¶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
	[¶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}
	[¶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 educational
decisions through vouchers, tuition reimbursement programs, or tax relief
programs.{7}  Several of those programs allow participation by parents with
children in religious schools.  Maine's tuition program does not allow such
participation.   Accordingly, our analysis is limited to whether either the
Maine or federal constitution is violated when the State operates a tuition
program that does not allow participation by religious schools.
	[¶13]  Addressing the constitutionality of the statute, the parties
recognize that "[w]e have traditionally exercised great restraint when asked
to interpret our state constitution to afford greater protections than those
recognized under the federal constitution," State v. Buzzell, 617 A.2d 1016,
1018 n.4 (Me. 1992), and do not contend that the Maine Constitution
affords greater protection than the United States Constitution.  See Blount v.
Department of Educ. and Cultural Serv., 551 A.2d 1377, 1385 (Me. 1988);
School Admin. Dist. No. 1 v. Commissioner, Dept. of Educ., 659 A.2d 854,
857 (Me. 1995).  We therefore address the parents' claims with the
understanding that the rights guaranteed by the United States Constitution
and the Maine Constitution are coextensive.{8}
	[¶14]  Because we are asked to review the constitutionality of an act of
the Legislature, we "begin with the basic principle of statutory construction
that 'this Court is bound to avoid an unconstitutional construction of a
statute if a reasonable interpretation of the statute would satisfy
constitutional requirements.'"  State v. Cropley, 544 A.2d 302, 304 (Me.
1988) (quoting Bossie v. State, 488 A.2d 477, 479 (1985)).  We are also
mindful, however, of the unique status of a judicial inquiry into the
interpretation of the First Amendment.  Where such fundamental rights as
those expressed in the First Amendment are at stake, we must examine the
issues independently, and we will not limit our inquiry by the constraints of
the often relied on deference to legislative findings.  See Landmark
Communications, Inc. v. Virginia, 435 U.S. 829, 843 (1978).
	[¶15]  Our analysis is made in three parts.  First, we will determine
whether the tuition statute violates the Free Exercise Clause of the First
Amendment.  Next, we will determine whether the statute as it now exists
violates the Establishment Clause of the First Amendment.  Finally, we will
consider whether the explicit exclusion of religious schools from the tuition
program violates the Equal Protection Clause of the Fourteenth Amendment.
Because the only basis asserted by the State for its disparate treatment of
religious schools is its understanding that the statute in existence prior to
the exclusion violated the Establishment Clause, in undertaking the Equal
Protection analysis, we will review in greater detail the recent changes in
Establishment Clause jurisprudence.
	[¶16]  The parents first contend that Maine's tuition program violates
the Free Exercise Clause by burdening their fundamental right to send their
children to religious schools.  See Meyer v. Nebraska, 262 U.S. 390 (1923). 
The Free Exercise Clause of the First Amendment provides that "Congress
shall make no law . . . prohibiting the free exercise [of religion]. . . ."  U.S.
Const. amend. I (emphasis added){9}.  "The free exercise inquiry asks
whether government has placed a substantial burden on the observation of a
central religious belief or practice and, if so, whether a compelling
governmental interest justifies the burden."  Hernandez v. Commissioner,
490 U.S. 680, 699 (1989).  The party challenging a statute on free exercise
grounds must "initially demonstrate:  (1) that the activity burdened by the
regulation is motivated by a sincerely held religious belief; and (2) that the
challenged regulation restrains the free exercise of that religious belief." 
Blount v. Department of Educ. and Cultural Servs., 551 A.2d at 1379.  If the
challenger meets that initial burden, "the burden shifts and the State can
prevail only by proving both:  (3) that the challenged regulation is motivated
by a compelling public interest; and (4) that no less restrictive means can
adequately achieve that compelling public interest."{10}  Id. 
	[¶17]  The defendants first assert that the parents have failed to
generate a genuine issue of material fact in support of their claim that
sending their children to Catholic high school constitutes an exercise of
religious practice or belief.  To preclude a summary judgment on this point,
the parents must present some fact tending to prove that attending Catholic
school is "not merely a matter of personal preference, but one of deep
religious conviction, shared by an organized group, and intimately related to
daily living."  Wisconsin v. Yoder, 406 U.S. 205, 216 (1972).  Of the parties
filing suit, only the Bagleys contend that religion was the motivation for
sending their son to Catholic school, and there is limited evidence in the
record demonstrating that obtaining a Catholic education for the Bagleys'
son is central to their religious beliefs.{11} 
	[¶18]  We recognize that courts should be hesitant to delve into the
asserted "centrality" of a religious practice, and we would do so only with
great caution.{12}  Here, however, we are not called upon to undertake that
analysis.  Assuming arguendo that the parents have raised disputes of fact
regarding matters central to their religious beliefs, we could not find that
any substantial burden has been imposed on the free exercise of those
beliefs.  "It is well established that there is no substantial burden placed on
an individual's free exercise of religion where a law or policy merely
'operates so as to make the practice of [the individual's] religious beliefs
more expensive.'"  Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 171
(4th Cir. 1995), cert. denied, 516 U.S. 1046 (1996) (quoting Braunfeld v.
Brown, 366 U.S. 599, 605 (1961)).  The concurring opinion of Justice
Douglas in Sherbert v. Verner, 374 U.S. 398 (1963) best articulates this
The fact that government cannot exact from [a citizen] a
surrender of one iota of [her] religious scruples does not, of
course, mean that [she] can demand of government a sum of
money, the better to exercise them.  For the Free Exercise
Clause is written in terms of what the government cannot do to
the individual, not in terms of what the individual can exact from
the government.{13}
Id. at 412 (Douglas, J., concurring).  Section 2591(2) does not prevent the
parents from sending their sons to Cheverus.  While they will not receive
tuition assistance if they choose to do so, they are no more impaired in their
efforts to seek a religious education for their sons than are parents of
children in school districts that provide only a free nonreligious education
in public schools. 
	[¶19]  In sum, the Free Exercise Clause is "designed to prevent the
government from impermissibly burdening an individual's free exercise of
religion, not to allow an individual to exact special treatment from the
government."  Swanson v. Guthrie Indep. Sch. Dist., 135 F.3d 694, 702
(10th Cir. 1998) (citing Snyder v. Murray City Corp., 124 F.3d 1349, 1353
(10th Cir. 1997)); Braunfeld, 366 U.S. at 605 (a statute that makes
adherence to religious beliefs "more expensive" does not burden free
exercise); McCarthy v. Hornbeck, 590 F. Supp. 936, 945-46 (D. Md. 1984)
(Free Exercise Clause does not mandate that the State subsidize a person's
constitutional right to send their children to church-related schools).  
	[¶20]  Because we conclude that the parents have failed to generate a
material fact upon which a factfinder could conclude that section 2951(2)
places a substantial burden on the free exercise of their religion, we
conclude that the exclusion of religious schools from the tuition program
does not violate the Free Exercise Clause of the First Amendment.
	[¶21]  The parents next contend that the exclusion of religious
schools from Maine's tuition program violates the Establishment Clause.{14} 
Their reliance on the Establishment Clause in this context is misplaced. 
The purpose of the Establishment Clause is reflected in the often repeated
words of Thomas Jefferson:  to build "a wall of separation between Church
and State."  Letter from Thomas Jefferson Replying to Public Address from
Committee of the Danbury Baptist Assn. of Connecticut (Jan. 1, 1802) in 3
The Writings of Thomas Jefferson 8-9 (H.A. Washington ed., 1861); see also
Reynolds v. United States, 98 U.S. 145, 164 (1878).  The dual concepts of
the First Amendment's references to religion are meant to address opposite
concerns.  The Free Exercise Clause addresses the "negative," it prevents
the government from interfering with religious practice, while the
Establishment Clause addresses the "affirmative," it prevents the
government from sponsoring or establishing a religion.  See Watson v. Jones,
80 U.S. 679, 730 (1871) ("The structure of our government has, for the
preservation of civil liberty, rescued the temporal institutions from religious
interference.  On the other hand, it has secured religious liberty from the
invasion of the civil authority.").  
	[22]  Distilled to its essence, the Establishment Clause prohibits the
government from supporting or advancing religion and from forcing
religion, even in subtle ways, on those who choose not to accept it.{15}  It has
no role in requiring government assistance to make the practice of religion
more available or easier.  It simply does not speak to governmental actions
that fail to support religion.  Accordingly, we find no support for the
proposition that the Establishment Clause prevents a state from refusing to
fund religious schools.  Having similarly found that no violation of the Free
Exercise Clause of the First Amendment has been demonstrated, we
conclude that any constitutional deprivation caused by 20-A M.R.S.A.
§ 2951(2) must arise, if at all, under the Equal Protection provisions of the
Fourteenth Amendment.

Continued as "bagley2.htm"

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Majority Opinion.

Dissenting Opinion.

Attorneys and parties


webmaster's note: in order to have a complete electronic file of the Bagley case, you will need the following files: 99me60ba.htm, bagley2.htm. bagley3.htm, bagdis.htm, bagatty.htm, bagfn.htm.