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On the heels of a recent U.S. Supreme Court victory, school choice advocates sued the state of Maine last week over a school voucher program that excludes religious schools. The suit — likely the first in a series of state challenges — seeks to overturn a 1981 law that allows public funds to be used to pay private school tuition for students in rural areas without public high schools — as long as the money is not used to pay for a religious school. The Washington, D.C.-based Institute for Justice, a libertarian public interest law firm that litigates school choice cases across the country, filed the suit Sept. 18 on behalf of six families from small towns in Maine with children attending parochial high schools. “Maine offers school choice to everyone except those who choose religious schools,” says Richard Komer, a senior attorney with the Institute for Justice. “Under the Constitution, that’s religious discrimination, and we intend to restore our clients’ religious liberty.” In June the Supreme Court ruled in Zelman v. Simmons-Harris that a Cleveland voucher program providing low-income parents with tuition vouchers that can be used at either religious or nonreligious private schools does not violate the constitutional separation of church and state. School choice advocates maintain that the Supreme Court decision removes any constitutional justification for treating religious schools differently. The recent case marks the second time the Institute for Justice has challenged the Maine program. In a similar suit filed by the group in 1997, the Maine Supreme Court upheld the law, citing Establishment Clause concerns. Komer jokes that he is now back to complete “unfinished business.” “Families in Maine who elect to send their children to religious schools are treated worse than their neighbors,” Komer says. “When you allow a school choice program where parents choose from a range of options, you cannot exclude schools just because they are religious.” But voucher opponents argue that the Supreme Court’s ruling in Zelman does not necessarily undermine Maine’s existing school choice program. “The Cleveland case says states may pay for religious schools. The question is, must they?” says Elliot Mincberg, legal director of People for the American Way, a D.C.-based advocacy group that opposes vouchers. The Maine suit is part of a broad effort by school choice supporters to overturn various state barriers to voucher programs. The Institute for Justice is actively preparing suits that challenge state constitutional provisions in Washington and Vermont and hopes a split in the circuit courts will force the issue back to the U.S. Supreme Court. “The focus really has shifted to the states, and I think it will remain there,” Mincberg says. “Each of the state constitutional provisions is going to have to be looked at on its own grounds.” The Maine case is somewhat unusual because it targets a school voucher program based on sparse population. Vermont is the only other state with a similar program. Robert Chanin, general counsel of the staunchly anti-voucher National Education Association, says his group is likely to intervene in support of the state. “We fought the battle up in Maine two years ago. We won it. And we are going to do whatever is necessary to preserve that decision,” Chanin says.

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