Eulitt v. ME Dept. of Edu

United States Court of Appeals
For the First Circuit

No. 04-1496

JOHN EULITT AND BELINDA EULITT, AS PARENTS AND
NEXT FRIENDS OF CATHLEEN N. EULITT, ET AL.,

Plaintiffs, Appellants,

v.

STATE OF MAINE, DEPARTMENT OF EDUCATION, ET AL.,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Boudin, Chief Judge,

Selya, Circuit Judge,

and Schwarzer,* Senior District Judge.

Stephen C. Whiting, with whom The Whiting Law Firm, P.A. was
on brief, for appellants.
Paul Stern, Deputy Attorney General, with whom G. Steven Rowe,
Attorney General, William H. Laubenstein, III, and Sarah A.
Forster, Assistant Attorneys General, were on brief, for appellees.

__________
*Of the Northern District of California, sitting by designation.
 Robert H. Chanin, Andrew D. Roth, Laurence Gold, Bredhoff &
Kaiser, P.L.L.C., Elliott M. Mincberg, Judith E. Schaeffer, Ayesha
N. Khan, Zachary L. Heiden, Jeffrey A. Thaler, and Bernstein, Shur,
Sawyer & Nelson, P.A. on consolidated brief for Maine Education
Association, National Education Association, Americans United for
Separation of Church and State, People for the American Way
Foundation, and Maine Civil Liberties Union, amici curiae.

October 22, 2004
 SELYA, Circuit Judge. This case calls upon us to decide

whether the Equal Protection Clause requires Maine to extend

tuition payments to private sectarian secondary schools on behalf

of students who reside in a school district that makes such

payments available on a limited basis to private nonsectarian

secondary schools. We hold that the Equal Protection Clause does

not impose any such obligation. Accordingly, although our

reasoning differs from that of the district court, we affirm the

entry of summary judgment in the defendants' favor.

I. BACKGROUND

By statute, Maine commits to providing all school-aged

persons with "an opportunity to receive the benefits of a free

public education," Me. Rev. Stat. Ann. tit. 20-A, § 2(1) (West

2004), and vests authority in local school districts to fulfill

that undertaking by maintaining and supporting elementary and

secondary education, id. §§ 2(2), 4501. School districts, known in

Maine's bureaucratic argot as school administrative units, enjoy

some flexibility in administering this guarantee. They may satisfy

the state mandate in any of three ways: by operating their own

public schools, see id. § 1258(1), by contracting with outside

public schools to accept their students, see id. §§ 1258(2), 2701;

or by paying private schools to provide such an education, see id.

§§ 2951, 5204(4). State law bars a school district that exercises

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the third option from paying tuition to any private sectarian

school. Id. § 2951(2).

The town of Minot comprises a school administrative unit.

It has decided to operate its own grade school (kindergarten

through eighth grade), but has chosen to outsource secondary

education. To this end, Minot has contracted with a neighboring

school district — the town of Poland — to educate at least 90% of

its eligible students at Poland Regional High School (PRHS). The

contract gives Minot the right to send up to 10% of its high

schoolers to other approved nonsectarian secondary schools (private

or public) so long as those students can demonstrate that they have

educational needs that PRHS cannot satisfy. The superintendent of

School Union #29, which consists of the school administrative units

of Poland, Mechanic Falls, and Minot, reviews applications for such

alternative placements on a case-by-case basis. By operation of

section 2951(2), however, sectarian schools cannot win approval for

publicly funded tuition payments (and, thus, Minot cannot

underwrite tuition for youths seeking to attend such schools).

John and Belinda Eulitt and Kelly J. MacKinnon are

parents residing in Minot who, on their own dime, send their

daughters to St. Dominic's Regional High School, a Catholic

secondary school that is indisputably sectarian. They believe

that, under Minot's education plan, the state and the town should

pay tuition directly to St. Dominic's on behalf of their daughters

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because PRHS does not offer classes in Catholic doctrine or teach

from a Catholic viewpoint (and, therefore, does not meet the full

range of their daughters' educational needs). The parents have not

submitted formal applications for such funding because section

2951(2), which forbids the payment of public dollars to sectarian

schools, would prevent the superintendent from approving any such

applications. Instead, as parents and next friends of their

daughters, they brought suit in Maine's federal district court

against various state educational authorities. Pertinently, their

complaint alleged that section 2951(2)'s restriction on the

approval of sectarian schools for placements funded by public

tuition payments violates the Equal Protection Clause of the

Fourteenth Amendment because that restriction discriminates on the

bases of religion, religious speech, and viewpoint. Additionally,

the complaint asserted a separate equal protection claim on behalf

of St. Dominic's, in which the parents argued that section 2951(2)

strips the school of equal protection of the laws because it denies

the school the ability to receive public funds for providing

secondary education services even though it allows private

nonsectarian schools to receive such stipends.

In due course, the parties cross-moved for summary

judgment. The district court referred the motions to a magistrate

judge who recommended, inter alia, that summary judgment be granted

in favor of the defendants on the equal protection claims. Eulitt

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v. Me. Dep't of Educ., No. 02-162, 2003 WL 21909790, at *4 (D. Me.

Aug. 8, 2003). The magistrate judge ruled that the Equal

Protection Clause does not compel the provision of public funds to

private sectarian schools, even when a school district has chosen

to subsidize the payment of tuition to private nonsectarian schools

on a limited basis. Id. at *3-4. On objection, see 28 U.S.C. §

636(b)(1); Fed. R. Civ. P. 72(b), the district court concurred with

the magistrate judge's recommended decision, but it did so solely

on the ground that this court's decision in Strout v. Albanese, 178

F.3d 57 (1st Cir. 1999), had "authoritatively answered exactly the

same questions Plaintiffs now urge this Court to decide," and,

therefore, pretermitted further inquiry under the doctrine of stare

decisis. Eulitt v. Me. Dep't of Educ., 307 F. Supp. 2d 158, 161

(D. Me. 2004). This appeal ensued.

II. ANALYSIS

The appellants hawk three propositions on appeal. First,

they urge that the doctrine of stare decisis does not foreclose

consideration of their substantive claims. Second, they contend

that the Establishment Clause does not compel Maine to eschew

public funding of sectarian education (and, hence, does not prevent

the state from providing the redress that they seek). Third, they

asseverate that section 2951(2) violates the Equal Protection

Clause because it discriminates on the bases of religion, religious

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speech, and viewpoint. We consider these propositions

sequentially.

A. Stare Decisis.

As a general matter, the doctrine of stare decisis

precludes the relitigation of legal issues that have previously

been heard and authoritatively determined. Stewart v. Dutra

Constr. Co., 230 F.3d 461, 467 (1st Cir. 2000). In other words,

stare decisis "renders the ruling of law in a case binding in

future cases before the same court or other courts owing obedience

to the decision." Gately v. Massachusetts, 2 F.3d 1221, 1226 (1st

Cir. 1993) (emphasis in original). For present purposes, the

question reduces to whether our earlier decision in Strout

constitutes such a bar.

Strout arose in a very similar posture. There, we upheld

the constitutionality of section 2951(2) against equal protection,

establishment, and free exercise challenges brought by parents (not

the present plaintiffs) who sought public funding for their

children's matriculation at St. Dominic's. Strout, 178 F.3d at 64-

65. The Strout panel rejected the equal protection challenge

because Maine had shown a compelling interest in avoiding an

Establishment Clause violation through the exclusion of sectarian

schools from its secondary education tuition program. Id. at 64.

Two members of the panel further speculated, in dictum, that if

Maine's proffered interest had been found to depend upon an

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erroneous understanding of the Establishment Clause (that is, if it

had been determined that payments to sectarian schools were

permissible under that clause), then the state's exclusion of

sectarian schools from the tuition program would not withstand

scrutiny. Id. at 64 n.12.

Three years later, the Supreme Court decided Zelman v.

Simmons-Harris, 536 U.S. 639 (2002). That opinion altered the

landscape of Establishment Clause jurisprudence in the school

finance context by upholding a program that allowed income-

qualified parents in Cleveland to elect to apply state-funded

school vouchers toward their children's tuition at private

sectarian schools. Id. at 644-46, 663. The Zelman Court announced

that indirect public aid to sectarian education is constitutionally

permissible when the financial assistance program has a valid

secular purpose, provides benefits to a broad spectrum of

individuals who can exercise genuine private choice among religious

and secular options, and is neutral toward religion. Id. at 662-

63.

Last term, the Supreme Court again addressed the

application of the First Amendment to educational funding issues.

The Court upheld a Washington state college scholarship program

that prohibited the application of scholarship funds toward the

pursuit of a devotional theology degree. Locke v. Davey, 124 S.

Ct. 1307, 1309 (2004). In so doing, the Court reaffirmed that

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"'there is room for play in the joints'" between the Religion

Clauses. Id. at 1311 (quoting Walz v. Tax Comm'n, 397 U.S. 664,

669 (1970)). By this, the Davey Court meant that "there are some

state actions permitted by the Establishment Clause but not

required by the Free Exercise Clause." Id.

The Zelman opinion raises the distinct possibility that

Strout's view of Maine's asserted interest depended upon an

incorrect interpretation of the Establishment Clause's strictures.

Davey also casts doubt on the reasoning of Strout because it

clarifies, and subtly alters, the decisional framework to be

applied to equal protection claims that are rooted in allegations

of religious discrimination. The district court nevertheless

declined to consider the effects of Zelman and Davey on the

continuing vitality of Strout. We do not find fault with that

cautious approach. See Crowe v. Bolduc, 365 F.3d 86, 94 (1st Cir.

2004) (noting that district court correctly regarded circuit

precedent as "good law" even though a subsequent Supreme Court

dictum had "presaged the demise" of the rule stated therein).

Until a court of appeals revokes a binding precedent, a district

court within the circuit is hard put to ignore that precedent

unless it has unmistakably been cast into disrepute by supervening

authority. See Sarzen v. Gaughan, 489 F.2d 1076, 1082 (1st Cir.

1973) (explaining that stare decisis requires lower courts to take

binding pronouncements "at face value until formally altered"); cf.

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Agostini v. Felton, 521 U.S. 203, 237-38 (1997) (reaffirming that

the Court has the prerogative to overrule its own decisions).

We are, of course, in a somewhat different position.

Even though "our precedent-based system of justice places a premium

on finality, stability, and certainty in the law," Stewart, 230

F.3d at 467, "stare decisis is neither a straightjacket nor an

immutable rule," Carpenters Local Union No. 26 v. U.S. Fid. & Guar.

Co., 215 F.3d 136, 142 (1st Cir. 2000). Thus, a panel of the court

of appeals has some flexibility, modest though it may be, with

respect to its own precedents.

Ordinarily, newly constituted panels in a multi-panel

circuit should consider themselves bound by prior panel decisions.

See United States v. Rodriguez, 311 F.3d 435, 438-39 (1st Cir.

2002); United States v. Wogan, 938 F.2d 1446, 1449 (1st Cir. 1991).

This rule is a specialized application of the stare decisis

principle. It is, however, subject to at least two exceptions,

either of which may warrant a departure from a prior holding.

The first exception comes into play when a preexisting

panel opinion is undermined by subsequently announced controlling

authority, such as a decision of the Supreme Court, a decision of

the en banc court, or a statutory overruling. Williams v. Ashland

Eng'g Co., 45 F.3d 588, 592 (1st Cir. 1995). That exception does

not apply here. Although Zelman did confirm that the state may

provide funding for sectarian education in certain instances, see

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Zelman, 536 U.S. at 662-63, the decision depended upon the Court's

careful consideration of the facts underlying the Cleveland voucher

program, see id. at 653-57. Even after Zelman and Davey, it is

fairly debatable whether or not the Maine tuition program could

survive an Establishment Clause challenge if the state eliminated

section 2951(2) and allowed sectarian schools to receive tuition

funds.1 Thus, the newly emergent Supreme Court case law does not

necessarily undercut the Strout panel's premise, 178 F.3d at 64 &

n.12, that Maine could not extend funding to sectarian schools

under its program without violating the Establishment Clause.

A second exception exists when recent Supreme Court

precedent calls into legitimate question a prior opinion of an

inferior court. Carpenters Local Union No. 26, 215 F.3d at 141;

see also Crowe, 365 F.3d at 89, 92. In that context, a reviewing

court must pause to consider the likely significance of the

neoteric Supreme Court case law before automatically ceding the

field to an earlier decision. See Williams, 45 F.3d at 592

(explaining that stare decisis may yield in "those relatively rare

instances in which authority that postdates the original decision,

1
Without belaboring the point, we note that the Maine program
is substantially narrower than the "broad[] undertaking by the
State to enhance educational options" that was under scrutiny in
Zelman, 536 U.S. at 647. Moreover, Maine's scheme provides for the
approval of applications based on an individualized assessment of
educational benefit, whereas the Cleveland program employed only
objective criteria of financial need and residency. See id. at
662.

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although not directly controlling, nevertheless offers a sound

reason for believing that the former panel, in light of fresh

developments, would change its collective mind").

We think that this exception applies here. In Strout,

the panel explicitly relied on "the present state of jurisprudence"

in determining that Maine's interest in excluding sectarian schools

from its tuition program would survive any level of scrutiny

because the Establishment Clause likely required the state to

maintain such an exclusion. Strout, 178 F.3d at 64. In reaching

this conclusion, the panel candidly observed that "the guidance

provided by the Supreme Court has been less than crystalline." Id.

Zelman and Davey obviously constitute significant developments in

the pertinent jurisprudence and shed new light on the case law upon

which the Strout decision hinged. If these decisions,

collectively, do not make the law crystalline, they at least

provide more focused direction than was available to the Strout

panel. Consequently, we find it incumbent upon us to reject a rote

application of stare decisis here and to undertake a fresh

analysis. See Arecibo Cmty. Health Care, Inc. v. Puerto Rico, 270

F.3d 17, 24 (1st Cir. 2001).

B. The Establishment Clause.

The appellants' second proposition invites us to

determine whether the state's asserted interest in maintaining

section 2951(2)'s parochial school exclusion in order to avoid an

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Establishment Clause violation is a valid one. This proposition is

asserted out of order: because the response to it depends upon

what level of scrutiny we should apply in this case, the

proposition itself is not susceptible to consideration at a

preliminary point in our analysis. We explain briefly.

It cannot be gainsaid that Establishment Clause defenses

sometimes trigger consideration of hypothetical statutory schemes

to determine whether entanglement concerns actually justify a

particular feature of a challenged law. However, such defenses

should not be addressed until a court has identified the right at

issue and ascertained the level of scrutiny that attaches to it.

See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98, 112-

13 (2001) (weighing the validity of a school's Establishment Clause

defense after finding that the challenged restriction constituted

viewpoint discrimination and that strict scrutiny therefore

applied); Widmar v. Vincent, 454 U.S. 263, 270-71 (1981)

(determining first that religious group's exclusion from open forum

was discriminatory, and then reviewing school's Establishment

Clause defense for retaining its existing forum access policy

instead of adopting a hypothetical policy that would be more

inclusive). That sequence is particularly significant in view of

the time-honored axiom that federal courts should withhold decision

on vexing constitutional questions until consideration of those

questions becomes necessary. See Ala. State Fed'n of Labor v.

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McAdory, 325 U.S. 450, 461 (1945) (noting that "[i]t has long been

[the Court's] considered practice not to decide abstract,

hypothetical or contingent questions, or to decide any

constitutional question in advance of the necessity for its

decision") (citations omitted); El Dia, Inc. v. Hernandez Colon,

963 F.2d 488, 494 (1st Cir. 1992) (similar).

That ends this aspect of the matter. Consideration of

the question that the appellants seek to pose — whether section

2951(2) or some similar restriction is indispensable to Maine's

obligation to keep its tuition program in compliance with the

Establishment Clause — is premature at this juncture. Instead, we

explore the contours of the right at issue and ascertain what level

of scrutiny an Establishment Clause defense would have to survive.

C. Equal Protection.

The heart of the appellants' claim is the proposition

that section 2951(2) violates both the equal protection rights of

St. Dominic's and the appellants' own equal protection rights (as

parents and next friends of their children) because the statute

discriminates on the bases of religion and religious speech.

Before untangling this argument, we first address the threshold

question of standing.

1. Standing. We start with the question whether the

appellants have standing to raise a constitutional claim on behalf

of St. Dominic's. An individual who asserts the constitutional

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rights of a third party must, of course, satisfy the Article III

requirements of injury in fact, causation, and redressability with

respect to the third-party claim. See Valley Forge Christian Coll.

v. Americans United for Sep. of Church & State, Inc., 454 U.S. 464,

472 (1982). In addition, that party must satisfy the prerequisites

that arise from prudential limitations on the jurisdiction of the

federal courts, namely, that the litigant personally has suffered

an injury in fact that gives rise to a sufficiently concrete

interest in the adjudication of the third party's rights; that the

litigant has a close relationship to the third party; and that some

hindrance exists that prevents the third party from protecting its

own interests. Powers v. Ohio, 499 U.S. 400, 411 (1991); Playboy

Enters. v. Pub. Serv. Comm'n, 906 F.2d 25, 37 (1st Cir. 1990).

In the case at hand, the appellants contend that section

2951(2) causes them injury in fact because it compels the

superintendent to reject all applications for the funding of a high

school education at St. Dominic's on the ground that the school is

religiously oriented (and, thus, ineligible to receive tuition

payments). Therefore, the statute's restriction on the school

translates into the parents' inability to gain approval for the

public funding of their children's sectarian education. This link

between the appellants' interests and those of St. Dominic's may

suggest the type of special relationship that would support a

departure from the general proscription on jus tertii claims. See,

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e.g., Craig v. Boren, 429 U.S. 190, 195 (1976) (finding vendor

satisfied jus tertii requirement to advocate for rights of third-

party consumers who may wish to purchase its wares); Pierce v.

Soc'y of Sisters, 268 U.S. 510, 535 (1925) (recognizing standing of

religious schools to assert the rights of potential pupils who

might seek access to their education services).

Assuming for argument's sake, but without deciding, that

both an injury and a sufficient relationship exist, the appellants

nonetheless stumble on the third step of the jus tertii standing

framework: they have wholly failed to show any obstacle preventing

St. Dominic's from bringing suit to protect itself against the

imagined infringements. The appellants have advanced no credible

suggestion either that St. Dominic's is generically unable to

assert its rights or that the circumstances of this case create

some idiosyncratic barrier to such a suit. Then, too, all of the

environmental factors point the other way. For one thing, section

2951(2) does not impose or threaten to impose any criminal or civil

penalty for any action that might be taken by sectarian schools.

Thus, this case does not fall into the isthmian category of cases

in which courts have recognized jus tertii standing because a third

party is understandably reluctant to engage in the allegedly

protected activity for fear of prosecution or other penalty.2 See,

2
The appellants alleged for the first time in their appellate
briefs that St. Dominic's faced an obstacle to suit arising out of
the risk of "reprisals" by the appellees (e.g., the loss of

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e.g., Broadrick v. Oklahoma, 413 U.S. 601, 612 (1973) (recognizing

third-party standing to bring First Amendment overbreadth claims).

For another thing, the appellants are not exposed to any criminal

or civil penalty because of their interaction with the school;

accordingly, cases in which the putative litigant faced such

penalties by providing assistance or service to the holder of the

third-party right are inapposite. See, e.g., Craig, 429 U.S. at

193-94 (finding third-party standing where litigant, a beer vendor,

faced sanctions and loss of license for sales to men between

eighteen and twenty years of age). And, finally, this case is not

one in which the right-holder has little or no financial incentive

to pursue suit or, alternatively, would face great difficulty in

demonstrating that the alleged injury was likely to reoccur. See,

e.g., Powers, 499 U.S. at 414-15 (noting that the barriers to suit

by a potential juror who believes he has been excluded because of

race are "daunting" because of the small financial stake involved

as well as the difficulty of proving that such discrimination would

recur).

At the expense of carting coal to Newcastle, we add that

the underlying justifications for the prudential limitation on

third-party standing could be thwarted were the appellants allowed

approved status for purposes of Maine's compulsory school laws).
This charge, in addition to being belated, is entirely without
foundation in the summary judgment record. We therefore reject it
out of hand.

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to serve as proxy-holders for St. Dominic's. Those justifications

include the venerable tenet that "third parties themselves usually

will be the best proponents of their own rights." Singleton v.

Wulff, 428 U.S. 106, 114 (1976). They also include the wise

counsel that, sometimes, the holder of a right has reasons of its

own for not pursuing potential claims. See, e.g., Friedman v.

Harold, 638 F.2d 262, 265-66 (1st Cir. 1981). An exception to

these basic maxims sometimes is warranted because a congruence of

interests exists between a litigant and a third party. See Playboy

Enters., 906 F.2d at 38. Here, however, it is by no means apparent

that the appellants and St. Dominic's share a common interest; it

is entirely possible that the school has refrained from litigation

precisely because it is not interested in participating in Maine's

tuition program and thereby subjecting itself to any number of

concomitant state regulations. Cf., e.g., Am. Library Ass'n v.

Odom, 818 F.2d 81, 82 (D.C. Cir. 1987) (finding that researchers

seeking access to certain library materials could not assert

library's property rights); Friedman, 638 F.2d at 266 (finding that

bankruptcy trustee was an inappropriate party to assert certain

rights of debtor).

For these reasons, we hold that the appellants lack

third-party standing to advance St. Dominic's equal protection

claim.

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 This holding does not end our odyssey. Although the

appellants lack standing to pursue their jus tertii claim, they do

have standing in their own right to seek global relief in the form

of an injunction against the enforcement of section 2951(2) and a

declaration of the statute's unconstitutionality. The appellants

have established standing directly based on their allegation that

section 2951(2) effectively deprives them of the opportunity to

have their children's tuition at St. Dominic's paid by public

funding. Even though it is the educational institution, not the

parent, that would receive the tuition payments for a student whose

"educational requirements" application was approved, it is the

parent who must submit such an application and who ultimately will

benefit from the approval. Because section 2951(2) imposes

restrictions on that approval, the parents' allegation of injury in

fact to their interest in securing tuition funding provides a

satisfactory predicate for standing. See Bennett v. Spear, 520

U.S. 154, 168-69 (1997) (explaining that harm "produced by

determinative or coercive effect" upon a third party satisfies the

injury in fact requirement when the harm is "fairly traceable" to

that effect).

2. The Merits. We thus proceed to the merits of the

appellants' equal protection claim and consider whether recent

Supreme Court precedents, especially the Court's opinions in Zelman

and Davey, provide a sound basis for overturning Strout.

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 In undertaking this examination, we review the district

court's entry of summary judgment de novo, considering the record

and all reasonable inferences therefrom in the light most favorable

to the summary judgment losers (here, the appellants). Garside v.

Osco Drug, Inc., 895 F.2d 46, 48 (1st Cir. 1990). Our

consideration is not inextricably linked to the district court's

stare decisis theory; rather, we may affirm the entry of summary

judgment on any independent ground fairly presented in the record.

Houlton Citizens' Coalition v. Town of Houlton, 175 F.3d 178, 184

(1st Cir. 1999).

The appellants first contend that section 2951(2)

discriminates against them on the basis of religion by forcing them

to choose between a publicly funded education and what they

describe as "their fundamental right[] of religion." Appellants'

Br. at 22. They attempt to position this harm under the rubric of

equal protection,3 avoiding any detailed reference to the Free

3
In their briefs, the appellants alternately invoke the
language of fundamental rights and suspect classifications. We
focus here on their claim of religion as a fundamental right. We
note, however, the hopelessness of any effort to suggest that those
who choose to send their children to religious schools comprise a
suspect class. The Supreme Court has taken a very limited approach
in recognizing suspect classifications. See, e.g., Johnson v.
Robison, 415 U.S. 361, 375 n.14 (1974) (describing criteria for
establishing a suspect classification). The traditional indicia of
suspect classification, such as immutable characteristics
determined by birth or membership in a group that is politically
powerless, are not present in this case. See id. (declining to
categorize group of religious conscientious objectors as a suspect
class); see also Corp. of the Presiding Bishop of the Church of
Jesus Christ of Latter-Day Saints v. Amos, 483 U.S. 325, 338-39

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Exercise Clause even though that clause defines the scope of the

fundamental right to religion incorporated by the Fourteenth

Amendment's equal protection guarantee. See Johnson v. Robison,

415 U.S. 361, 375 n.14 (1974).

This crabbed approach will not wash. In Davey, the

Supreme Court clearly rejected this type of effort to erect a

separate and distinct framework for analyzing claims of religious

discrimination under the Equal Protection Clause. See Davey, 124

S. Ct. at 1312 n.3 (confirming that the Free Exercise Clause

provides the primary framework for assessing religious

discrimination claims). Along these lines, the Court held that if

a challenged program comports with the Free Exercise Clause, that

conclusion wraps up the religious discrimination analysis. See id.

Thus, rational basis scrutiny applies to any further equal

protection inquiry.4 See id.; see also Johnson, 415 U.S. at 375

(1987) (explaining that although laws that draw distinctions among
religions can give rise to a suspect classification triggering
strict scrutiny, provisions that distinguish generally between
secular and religious entities engender rational basis scrutiny).
4
The majority in Strout found it unnecessary to articulate the
particular level of scrutiny it employed in rejecting the equal
protection challenge. Strout, 178 F.3d at 64. To the extent the
panel may have suggested that a religious discrimination claim
might be twice subjected to an analysis aimed at determining the
level of scrutiny to be applied — once under the Free Exercise
Clause and again as a freestanding claim under the Equal Protection
Clause — that implication must be abandoned. Davey unequivocally
rejected such an approach on the ground that the free exercise
analysis definitively answers the question whether the challenged
state action impermissibly infringes upon the fundamental right to
religion. See Davey, 124 S. Ct. at 1312 n.3. Thus, an equal

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n.14 (explaining that once a law is found to be valid with respect

to the free exercise right, there is "no occasion to apply to the

challenged classification a standard of scrutiny stricter than the

traditional rational-basis test" in addressing an equal protection

claim). Accordingly, we inquire whether intervening Supreme Court

precedent alters the panel's conclusion in Strout that section

2951(2) marks no free exercise violation.

In Strout, the panel held that section 2951(2) imposes no

substantial burden on religious beliefs or practices — and

therefore does not implicate the Free Exercise Clause — because it

does not prohibit attendance at a religious school or otherwise

prevent parents from choosing religious education for their

children.5 Strout, 178 F.3d at 65. Far from undermining that

analysis, Davey reinforces it. Indeed, Davey confirms that the

Free Exercise Clause's protection of religious beliefs and

practices from direct government encroachment does not translate

into an affirmative requirement that public entities fund religious

protection claim that challenges a law found not to violate the
Free Exercise Clause gives rise only to rational basis review. See
id.
5
We add that the statute does not exclude residents of Minot
from participation in the tuition program on the basis of religion;
all school-aged residents are equally eligible to apply for the
benefit that the program extends — a free secular education. Any
shift in the decisional calculus for parents who must decide
whether to take advantage of that benefit or pay to send their
children to a school that provides a religious education is a
burden of the sort permitted in Davey, 124 S. Ct. at 1315.

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activity simply because they choose to fund the secular equivalents

of such activity. See Davey, 124 S. Ct. at 1313. Consequently,

the appellants' effort to characterize Maine's decision not to

deploy limited tuition dollars toward the funding of religious

education as an impermissible burden on their prerogative to send

their children to Catholic school is futile. The fact that the

state cannot interfere with a parent's fundamental right to choose

religious education for his or her child does not mean that the

state must fund that choice. Cf. Maher v. Roe, 432 U.S. 464, 475-

77 (1977) (explaining that the fundamental right to abortion does

not entail a companion right to a state-financed abortion).

The appellants endeavor to cabin Davey and restrict its

teachings to the context of funding instruction for those training

to enter religious ministries. Their attempt is unpersuasive. We

find no authority that suggests that the "room for play in the

joints" identified by the Davey Court, 124 S. Ct. at 1311, is

applicable to certain education funding decisions but not others.

We read Davey more broadly: the decision there recognized that

state entities, in choosing how to provide education, may act upon

their legitimate concerns about excessive entanglement with

religion, even though the Establishment Clause may not require them

to do so.

In addition to holding that section 2951(2) imposes no

constitutionally impermissible burden on religion, the Strout panel

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found no indication that substantial animus against religion had

motivated the passage of that law. See Strout, 178 F.3d at 65.

Despite this finding, the appellants, relying on Church of the

Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993),

resurrect the claim that section 2951(2) is presumptively

unconstitutional because it lacks religious neutrality on its face.

According to this thesis, the fact that the statute expressly

excludes sectarian institutions as potential recipients of

education funds necessarily indicates an animus against religion.

The decision in Lukumi cannot bear the weight that the

appellants pile upon it. There, the Court invalidated a local

ordinance that made it a crime to engage in certain kinds of animal

slaughter because it found overwhelming evidence that animus

against the Santeria religion had motivated the ordinance's

passage. See id. at 535, 546. There is not a shred of evidence

that any comparable animus fueled the enactment of the challenged

Maine statute.

The Davey Court catalogued the principal factors to be

considered in determining whether a particular law is motivated by

religious animus. To determine whether any implication that might

be drawn from a state's decision not to fund a particular activity

constitutes impermissible animus, an inquiring court must examine

whether the state action in question imposes any civil or criminal

sanction on religious practice, denies participation in the

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political affairs of the community, or requires individuals to

choose between religious beliefs and government benefits. See

Davey, 124 S. Ct. at 1312-13. To the extent that these factors

articulate a test for smoking out an anti-religious animus, the

statute here passes that test with flying colors. Maine's decision

not to extend tuition funding to religious schools does not

threaten any civil or criminal penalty. By the same token, it does

not in any way inhibit political participation. Finally, it does

not require residents to forgo religious convictions in order to

receive the benefit offered by the state — a secular education.

If more were needed — and we doubt that it is — Davey

recognized that states are not required to go to the brink of what

the Establishment Clause permits. Id. at 1311-12. As part of its

formulation of this doctrine, the Davey Court confirmed the

legitimacy of extra-constitutional Establishment Clause concerns.

See id. Given these acknowledgments, it would be illogical to

impose upon government entities a presumption of hostility whenever

they take into account plausible entanglement concerns in making

decisions in areas that fall within the figurative space between

the Religion Clauses. Just as the Davey Court found that the

scholarship program at issue there was not inherently suspect

simply because "there [was] no doubt that the State could,

consistent with the Federal Constitution, permit [scholarship

recipients] to pursue a degree in devotional theology," id., the

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mere fact that a hypothetical program in which Maine extended

tuition funding to parochial schools might comport with the

Establishment Clause would not support a presumption that religious

hostility motivated its decision not to adopt such a scheme.

In sum, recent Supreme Court jurisprudence reinforces

rather than undermines Strout's conclusion that section 2951(2)

perpetrates no free exercise violation. That reinforced conclusion

shortens the road that we must travel. Having determined that the

appellants' free exercise rights are not implicated by section

2951(2), we have no occasion to ponder whether Maine's

Establishment Clause defense constitutes a compelling interest that

justifies the challenged restriction. This, in turn, renders it

unnecessary to construct and construe a hypothetical tuition plan

based on the premise that Maine would repeal section 2951(2) but

leave intact all other relevant provisions of the statutory scheme.

It follows inexorably that we must apply rational basis

scrutiny to the lines that the Maine statute actually draws. See

Davey, 124 S. Ct. at 1312 n.3. That means that the appellants bear

the burden of demonstrating that there exists no fairly conceivable

set of facts that could ground a rational relationship between the

challenged classification and the government's legitimate goals.

Kittery Motorcycle, Inc. v. Rowe, 320 F.3d 42, 47 (1st Cir. 2003);

Montalvo-Huertas, v. Rivera-Cruz, 885 F.2d 971, 978-79 (1st Cir.

1989). Like any other challenger confronting rational basis

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review, they must rule out every plausible rationale that might

support the law at issue. Heller v. Doe, 509 U.S. 312, 320 (1993);

Boivin v. Black, 225 F.3d 36, 44 (1st Cir. 2000).

Under the best of circumstances, this is a steep uphill

climb for a plaintiff. The appellants have declined to engage in

it. At oral argument in this court, they conceded that if the

rational basis test applies, their equal protection claim fails.

This concession is understandable: the legislative history clearly

indicates Maine's reasons for excluding religious schools from

education plans that extend public funding to private schools for

the provision of secular education to Maine students. These

reasons include Maine's interests in concentrating limited state

funds on its goal of providing secular education, avoiding

entanglement, and allaying concerns about accountability that

undoubtedly would accompany state oversight of parochial schools'

curricula and policies (especially those pertaining to admission,

religious tolerance, and participation in religious activities).

In all events, we accept the appellants' concession at face value

and hold that their equal protection challenge to section 2951(2)

fails as a matter of law.

We need not tarry in addressing appellants' additional

contention that section 2951(2) violates the fundamental right to

speech because it discriminates on the basis of religious

viewpoint. The statute at issue here does not implicate the

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appellants' speech rights at all. As the Supreme Court made clear

in Davey, state programs to fund general tuition costs are not fora

for speech. Davey, 124 S. Ct. at 1312 n.3. The Maine education

plan deals with the provision of secular secondary educational

instruction to its residents; it does not commit to providing any

open forum to encourage diverse views from private speakers.

Consequently, cases dealing with speech fora — such as Rosenberger

v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995), relied

upon by the appellants — are not relevant. See Davey, 124 S. Ct.

1312 n.3.

III. CONCLUSION

We need go no further. For the reasons elucidated above,

we conclude that the district court did not err in granting the

appellees' motion for summary judgment.

Affirmed.

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