A lawsuit over Maine’s school tuition law is going to the state supreme court today.

Last fall, a Maine Superior Court judge upheld a 23-year-old state law that prohibits towns from paying for students to attend religious schools. At the time, the judge agreed that it was constitutional for Maine to maintain a tuition law that allows towns without schools to pay for tuition at public or private institutions, but not religious schools.

Eight area families are appealing the decision today.

The Institute for Justice, a Washington-based law firm, filed the original lawsuit 2½ years ago on behalf of six families, saying the state’s refusal to pay for religious schools violated their right to free exercise of religion. Since then, two other families joined the suit.

All eight are from Minot, Durham or Raymond, towns that have no high schools.

For years, Maine has successfully argued that the U.S. Constitution forces it to exclude religious schools from its tuition programs. But 2½ years ago, the U.S. Supreme Court ruled that the Constitution did allow a Cleveland voucher program to pay for children to attend church-run schools. That ruling opened the door for states to pay religious school tuition.

The Institute for Justice pointed to the Cleveland case in its Maine suit. Institute lawyers said Maine can no longer claim the Constitution forces it to exclude religious schools.

However, the Maine Attorney General’s Office argued last fall that the Cleveland case may have allowed states to pay for religious schools but did not require them to. Deputy Attorney General Paul Stern has said Maine has the option to pay for religious schools, but has chosen not to.

He also argued that Maine’s public education system works best when it is diverse, not separate and sectarian. Maintaining that diversity, he said, is in the best interest of the state.

Last fall, the judge agreed.

Today, the two sides will bring their arguments to the Maine Supreme Judicial Court in Portland. A ruling may take months.

As of fall, more than 6,100 Maine students receive public funds to attend schools outside their towns, not including those who need special education programs. Fifty-four Maine towns or townships have no school, while 90 have no high school.

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