Arlington, Va.—A panel of the 1st U.S. Circuit Court of Appeals today issued a ruling upholding a Maine law that excludes religious schools as an option for parents and students from the state’s high school tuitioning program. The ruling comes despite the recent U.S. Supreme Court decision in Espinoza v. Montana¸ which struck down similar restrictions in a school choice program. The parents challenging the law and their attorneys at the Institute for Justice (IJ) and the First Liberty Institute (FLI) will appeal today’s decision to the U.S. Supreme Court.

“Today’s decision allows the state of Maine to continue discriminating against families and students seeking to attend religious schools and we will immediately appeal to the U.S. Supreme Court,” said IJ Senior Attorney Tim Keller. “The Supreme Court’s recent decision in Espinoza prohibits religious discrimination in educational choice programs. Today’s decision is disappointing for families across Maine, but we are confident the Supreme Court will ultimately put a stop to it.”

Maine is home to the nation’s second-oldest school choice program. Since 1873, Maine’s “tuitioning” system has paid for parents in towns too small to maintain public schools to send their children to the school of their choice—public or private, in-state or out-of-state. Until a flawed 1980 legal opinion, parents were free to exercise their independent choice to select religious schools.

“The U.S. Constitution does not allow the government to discriminate against religious educational options,” said IJ Senior Attorney Arif Panju. “The state of Maine has done so for 40 years, and we will ask the U.S. Supreme Court to finally put an end to it.”

The three plaintiff families reside in small towns—Orrington, Glenburn and Palermo—where the local school districts pay tuition for resident high school students to attend the public or private schools of their choice in lieu of maintaining their own public high schools.