Students leave St. Dominic Academy high school in Auburn after classes on April 9. The high school and Crosspoint Church in Bangor had sued the state over its law requiring schools that receive public money to follow certain nondiscriminatory hiring and admission practices. (Andree Kehn/Staff Photographer)

A federal appeals court has upheld a ruling prohibiting two religious high schools in Maine from accessing public tuition because they don’t adhere to the state’s anti-discrimination law.

The 1st U.S. Circuit Court of Appeals late last week agreed with a lower court’s rejection of a request brought by the schools, but did say the schools were likely to prevail on a separate argument about religious expression, and sent that section back to the U.S. District Court of Maine.

Maine had long excluded religious schools from its policy that allows public money to be used for private school tuition if students have no local public school options. But in 2022, the U.S. Supreme Court struck down that ban, saying the policy violated the constitutional right to religious exercise.

At the same time, however, the Legislature made amendments to its statewide antidiscrimination law, the Maine Human Rights Act, by requiring all schools receiving public money to follow certain nondiscriminatory hiring and admission practices, like allowing students to express gender identities different than those assigned at birth, and permitting them to practice a different religion that the school’s.

Two religious high schools — the Catholic school St. Dominic Academy in Auburn and Crosspoint Church, an independent Christian church that operates Bangor Christian School — each sued in 2023 over those changes.

Federal District Judge John Woodcock denied their requests, but the schools appealed to the 1st Circuit. The court heard oral arguments in the case nearly 18 months ago.

In last week’s decision, authored by Judge William Kayatta Jr., the judges for the most part agreed with Woodcock’s decision. (Kayatta wrote separate decisions for the two schools, but published a much more robust ruling in the St. Dominic case and said it generally applied to both.)

He wrote that the schools did not offer compelling arguments that the rules related to employment, religious nondiscrimination, sexual orientation and gender identity discriminate against the schools.

But on one point, the 1st Circuit reversed Woodcock’s ruling, sending the decision back to the lower court.

That issue pertains to what the court calls the Religious Expression Rule, a part of the Human Rights Act added in 2021 that says to the extent that a school allows religious expression, it must not discriminate between religions.

St. Dominic challenged that rule, arguing it violated its right of free expression, and the 1st Circuit agreed.

“Should St. Dominic accept tuition-assistance funds, the Religious Expression Rule would
clearly force St. Dominic to allow non-Catholic religious proselytizing unless it barred all forms of religious expression,” the court wrote, adding that obeying the rule would conflict with the school’s self-described role as part of the Catholic Church’s evangelizing mission.

Kayatta wrote that requiring a school to allow all religious expression might require a school to permit the recitation of other religious practices, like the Hare Krishna mantra, in the middle of the Lord’s Prayer, and said enforcement of the rule would, “inevitably interfere with a religious school’s ability to foster an expressive environment consistent with its religious mission.”

It found that the school would be likely to succeed on that argument, and returned the decision to the lower court to issue an injunction against the state’s enforcement of that part of the act.

The lead attorney for St. Dominic, Adèle Keim with the nonprofit religious liberty firm Becket, said Monday that the 1st Circuit, “just rubber-stamped Maine’s discriminatory plan.”

She said the ruling means Catholic schools must now, “agree to help with gender transitions for children as young as kindergarten and also that Catholic schools can’t focus on admitting Catholic kids” but said there is a forthcoming U.S. Supreme Court case about religious schools and public money that will address similar issues. (Becket is also representing the plaintiffs in that case.)

The American Civil Liberties Union of Maine celebrated the 1st Circuit’s decision.

“We applaud the court’s rejection of those arguments and its defense of the Maine Human Rights Act,” Carol Garvan, the organization’s legal director, said on Monday. “Any school that chooses to participate in a state-funded education program must play by the same rules and comply with the same state regulations as all other participants.”

A spokesperson for the Office of the Maine Attorney General, which represented the Department of Education and the Human Rights Commission (the agency that enforces the Human Rights Act) did not respond Monday to a request for comment.

Since the suit was first filed, St. Dominic Academy announced the closure of its high school, due to operational losses and enrollment declines; the board attempted to reopen the school in a new location in Lewiston for this fall, but abandoned the effort in March after failing to secure necessary funding.

The Diocese of Portland’s K-8 program is still in operation, and moved to the Auburn campus in January.