The Cumberland County Superior Court is expected to hear a school choice case tomorrow that reflects an evolution in the way the nation views church and state issues surrounding school funding. Its outcome isn’t likely to cause major changes nationally, but it may give some Maine families a greater choice of where to educate their children.

Four families from Raymond, led by Cynthia and Robert Bagley, claim Maine’s rural school choice program, the means by which students from towns without high schools get high-school educations, unfairly discriminates by allowing them to use public money for tuition to any private school, as long as the school does not include religion in its curriculum. Maine’s policy is based on a 1980 conclusion by its attorney general that spending public funds on religious education violated the U.S. Constitution’s establishment clause.

Though the wording in the Constitution hasn’t changed since then, a review today by the attorney general might produce the opposite conclusion. The Supreme Court in the last decade or so has moved away from the fire-wall view of separating government and religious activity toward a more flexible position. The court just last June, in fact, in a case called Agostini v. Felton, ruled that public school employees could teach remedial courses in religious schools.

The use of public funds or resources that have the effect of supporting religious institutions is nothing new. Proponents of the school choice argument liken it to a city fire department putting out a fire in a church. More closely tied to education are the federal government programs, such as the G.I. Bill and Pell Grants, that help fund students at any institution of higher education, including private, religious ones.

During the 1979-80 school year, just before the attorney general’s ruling, about 18,000 Maine students used the tuitioning program. Of those, only 211 went to religious schools and there is no reason to suppose the number would be much higher now. The question is whether the state will continue to deny this small number of families who are without schools in their communities the ability to educate their children at schools that otherwise meet all state requirements.

This looks like a decision that needs to be rewritten.