ORDER AFFIRMING THE RECOMMENDED DECISION OF THE MAGISTRATE JUDGE
In Strout v. Albanese, 178 F.3d 57 (1st Cir. 1999), theFirst Circuit upheld the constitutionality of 20-A M.R.S.A. §2951(2), which provides only nonsectarian schools are eligible forreceipt of public funds for tuition purposes.1 The Plaintiffs invitethis Court to revisit Strout in light of subsequent UnitedStates Supreme Court decisions. Based on the doctrine of staredecisis, this Court declines to do so and affirms the Report andRecommended Decision of Magistrate Judge Kravchuk, recommending summaryjudgment in favor of the State of Maine.2Page 2
I. Factual Background
The Plaintiffs, John and Belinda Eulitt, on behalf of themselves andtheir daughter, Cathleen Eulitt, and Kelly MacKinnon, on behalf ofherself and her daughter, Lindsey Freeman, seek public funding to pay fortheir daughters' tuition at St. Dominic's, a Catholic high school.Plaintiffs are residents of Minot, Maine, which has public schooling fromkindergarten through eighth grade. Since Maine law requires each town toprovide a free public education for its residents from kindergartenthrough twelfth grade, Minot has contracted with a nearby schooladministrative district to allow its residents to attend Poland RegionalHigh School (PRHS). At least ninety percent of its high school agechildren attend PRHS; however, the Minot School Committee and MinotSchool Superintendent have the authority to approve tuition payments to ahigh school other than PRHS, if the students have "educational programrequirements that may not be offered in association with [PRHS]."Plaintiffs contend the Minot School Committee and Superintendent shouldapprove tuition payments to St. Dominic's on the ground that PRHS doesnot teach Catholicism, an educational program available at St.Dominic's.3 Plaintiffs have brought suit against the Maine Departmentof Education and its Commissioner, seeking declaratory and injunctiverelief as well as damages for allegedPage 3constitutional violations.4 Plaintiffs and Defendants have moved forsummary judgment. Plaintiffs and Defendants have moved for summaryjudgment in their favor.
In 1999, the First Circuit and the Maine Supreme Judicial Courtrejected constitutional challenges to § 2951(2). Strout, 178F.3d at 60; Bagley v. Raymond Sch. Dep't, 1999 ME 60,728 A.2d 127. Both decisions were based, in part, on the premise that theEstablishment Clause prohibits direct public subsidies to religiousschools. Strout, 178 F.3d at 60-1 (stating "there is nobinding authority for the proposition that the direct payment oftuition by the state to a private sectarian school is constitutionallypermissible"); Strout, 178 A.2d at 136 (noting "we find nosupport for the proposition that the Establishment Clause prevents astate from refusing to fund religious schools."). The BagleyCourt went further and concluded that "if the exclusion of religiousschools is not required by the Establishment Clause of the FirstAmendment, it must be struck down because the State offers no otherreason for its existence." Bagley, 1999 ME 60 ¶ 32,728 A.2d 127. The Strout Court concurred, stating "we agree with theMaine Supreme Court that `If the State's justification [had been] basedon an erroneous understanding of the Establishment Clause, itsjustification would not [have] withstood any level of scrutiny.'"Strout, 178 F.3d at 64, n. 12.
In 2002, the United States Supreme Court decided Zelman v.Simmons-Harris, 536 U.S. 639 (2002). In Zelman, the SupremeCourt held that an Ohio school voucher program, which providedpublicly-funded tuition aid to families whose children werePage 4attending religious schools, did not violate the EstablishmentClause. The Plaintiffs contend that the Zelman holding shouldcause this Court to reassess Strout's continuing vitality, sinceZelman, in their view, upholds the constitutionality of directfunding to religious schools like St. Dominic's. The Supreme Court alsorecently decided Locke v. Davey, 2004 WL 344123, (Feb. 25,2004), in which it concluded that a Washington state statute, prohibitingstate-aid to post-secondary students pursuing degrees in theology, didnot violate the Establishment and Free Exercise Clauses.
This Court resists the considerable temptation to engage in its ownanalysis of the current state of the Establishment Clause, the FreeExercise Clause, and the Equal Protection Clause followingZelman and Locke. The Strout holding remainsbinding upon this Court and under the doctrine of stare decisis,this Court's discussion begins and ends with Strout. Thedoctrine of stare decisis "renders the ruling of law ina case binding in future cases before the same court or other courtsowing obedience to the decision." Gately v. Massachusetts, 2F.3d 1221, 1226 (1st Cir. 1993). See also Ramos v. Beauregard,Inc., 423 F.2d 916, 917 (1st Cir.), cert. denied400 U.S. 865 (1970) ("One who seeks to overcome the principle of staredecisis should be prepared to offer compelling reasons whichoutweigh the public interest in the stability of legal doctrine.");United States v. Maine, 420 U.S. 515, 527 (1975) ("the doctrineof stare decisis is still a powerful force in ourjurisprudence").
The First Circuit has noted that "there may be occasions when courtscan-and should-loosen the iron grip of stare decisis." United Statesv. Reveron Martinez, 836 F.3d 684, 687, n.2 (1st Cir. 1988).However, any such departure "demands special justification." Arizonav. Rumsey, 467 U.S. 203, 212 (1984). In Gately, forexample, thePage 5First Circuit upheld Judge Mazzone's conclusion that, in light ofrecent Supreme Court decisions, there had been "considerable landscaping"that had changed the "contours of the law," since the last First Circuitopinion. Gately, supra; 811 F. Supp. 26, 31 (D.Mass 1992). Indoing so, the Gately Court noted the District Court had beenfaced with a "different set of facts" and "a newly crafted set of legalrules" and therefore, the issue was one of "first impression" for theCircuit. Gately, 2 F.3d at 1228.
By contrast, the Strout Court ruled on precisely the samestatutory provision now before this Court, a provision unchanged since1999. Further, the parties in Strout, like the parties here,raised Establishment Clause and Equal Protection Clause arguments, bothof which the Strout Court addressed. The First Circuit has,therefore, authoritatively answered exactly the same questions Plaintiffsnow urge this Court to decide. Whether United States Supreme Court caselaw subsequent to Strout would or should cause the First Circuitto reassess its holding in Strout is a question for the FirstCircuit itself, not this Court It remains this Court's obligation toapply the law handed down by the First Circuit Court of Appeals inStrout.
Based on the holding of Strout v. Albanese, it is ORDERED thatthe Recommended Decision of the Magistrate Judge is hereby AFFIRMED andit is further ORDERED that the Plaintiffs' Motion for Summary Judgment isDENIED and the Defendants' Motion for Summary Judgment is GRANTED.5
1. 20-AM.R.S.A. § 2951 reads as follows: A private secondary school may be approved for the receipt of public funds for tuition purposes only if it: (2) Is a nonsectarian school in accordance with the First Amendment of the United States Constitution.
2. Both parties filed motions for summary judgment. The MagistrateJudge recommended that this Court deny Plaintiffs' motion for summaryjudgment and grant Defendants' motion for summary judgment. TheMagistrate Judge's Recommended Decision reached the merits of theparties' Establishment Clause and Equal Protection Clause arguments.Based on the doctrine of stare decisis, however, this Court concludes itcannot address the merits of the constitutional issues the parties haveargued. The Recommended Decision is affirmed, because the MagistrateJudge's Recommended Decision recommends the same result this Courtconcludes the First Circuit mandated in Strout.
3. Plaintiffs never formally filed applications for tuition paymentsfor Cathleen Eulitt and Lindsey Freeman to the Minot School Committee andSuperintendent and, therefore, their demands have never been formallydenied. Plaintiffs claim they believe d their requests for tuitionpayments would have been denied. The Eulitts state their elder daughterhad attended St. Dominic's and they had requested and been denied tuitionpayments for her. They claim the office manager for the MinotSuperintendent had informed them their other children would not beeligible for tuition payments, so long as they attended St. Dominic's.Ms. MacKinnon claims she sent a letter in July 2002 to the Town of Minot,asking for tuition payments to St. Dominic's for Lindsey and neverreceived a reply. Defendants deny these factual allegations.
4. The Eulitts originally named as Defendants the Department ofEducation, former Commissioner of Education J. Duke Albanese, SchoolUnion 29, Superintendent Robert E. Wall, in his personal and officialcapacities, the Minot School Committee. In a stipulated dismissal ofparties, the Plaintiffs agreed to dismiss all defendants except theDepartment of Education and the Commissioner. (Docket No. 7.)
5. After the Plaintiffs objected to the Magistrate Judge'sRecommended Decision and the State filed its Response, Plaintiffs filedwith this Court a copy of the Brief of the United States as Amicus Curiaethat had been filed with the United States Supreme Court in the Lockev. Davey appeal. The State moved to strike the filing on a number ofgrounds: 1) an asserted violation of Rule 5(a); 2) the Amicus Briefconstitutes a selective presentation of only one of many briefs filedwith the Supreme Court; and, 3) the Amicus Brief constitutes asupplemental filing in violation of the local rules. This Court grantsthe State's Motion to Strike. On March 9, 2004, this Court received a written request fromPlaintiff's counsel to file a supplemental brief to discuss the effectLocke v. Davey has on this case. In light of the basis of this Court'sruling, Plaintiff's request, which will be treated as a motion to filesupplemental brief, is denied.