Court declines school-choice appeal

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Originally published 10:37 p.m., November 27, 2006, updated 12:00 a.m., November 28, 2006

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The Supreme Court yesterday declined to hear a school-choice case out of Maine, where a group of families says it's unfair that state law bars them from using funds provided by the state's existing school-choice program to send their children to religious schools.

"Maine offers school choice to everyone except parents who choose religious schools," said Dick Komer, senior lawyer for the Institute for Justice, which represented the eight Maine families. "Under the federal Constitution, that's religious discrimination, and we will continue to seek out every opportunity to secure a ruling from the court."

About half of the towns in largely rural Maine don't maintain public high schools, so for more than 100 years the state has paid for parents in those areas to send their children to public or private high schools, inside or outside the state. Starting in 1980, religious schools were denied the choice by the state attorney general, a decision that was enshrined into law a few years later by the state Legislature.

The Institute for Justice challenged this setup unsuccessfully in the 1990s and the Supreme Court refused to hear the case then as well. But in 2002 the high court gave the green light to a Cleveland school-choice program that included religious schools, so the institute decided to pursue the Maine case anew.

Opponents of school choice said the Supreme Court's refusal to hear the Maine case proves there's no political will to force religious school choice, even though the high court allowed it under the 2002 ruling.

"These guys have legal momentum on their side, but apparently no support politically," said Rob Boston, spokesman for Americans United for Separation of Church and State. "It shows that the voucher movement has completely stalled, even in light of the 2002 ruling."

Advocates say nothing could be further from the truth.

"It's definitely a slow fight, but there's a lot of progress that has been made in recent years," said Dan Lips, education analyst at the Heritage Foundation, citing at least eight states that have recently expanded or enacted school-choice initiatives. He said that while it would have been a great boon to the school-choice movement if the high court had taken the case and ruled in favor of the Maine families, the court's denial to hear the case "won't change the landscape of the school-choice debate nationwide."

Mr. Komer agreed that it simply "leaves the status quo" and doesn't harm nationwide efforts.

Frederick Hess, director of education-policy studies at the American Enterprise Institute, theorized that the Supreme Court may want to address a choice program that can be applied more broadly than Maine's unique situation.

"In some sense, what they're doing is keeping their powder dry," he said of the high court justices.

Among the other cases the justices declined to hear yesterday:

• A lawsuit against Salt Lake City brought by the widow of a former suspect in the abduction of Elizabeth Smart.

• An asylum seeker found to have engaged in terrorist activities in Northern Ireland.

• A case in which an Indian tribe challenged the authority of Rhode Island officials to enforce a state law on the tribal reservation. The dispute over the tribe's decision not to pay for state-mandated tax stamps stemmed from a police raid on a tribal smoke shop.

• A request by the state of Florida to consider whether using a police dog to sniff for marijuana from the front door of a residence constitutes an illegal search.

• A challenge by the state of Illinois to a state appeals court decision that a police officer did not have reasonable suspicion when asking a driver's permission to search his car during a routine traffic stop.

• This article was based in part on wire-service reports.

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