Vermont Can’t Discriminate Against Religious Schools

The right to religious freedom in the First Amendment guarantees that all Americans can practice their religion without discrimination from the government. But in Vermont, that right was threatened by a policy that was enforced to exclude certain religious schools from a state tuition program—just because they were religious.

Alliance Defending Freedom represented multiple families in their quest to ensure that the right to religious freedom was affirmed in school choice.

What was the policy at issue in Vermont?

In Vermont, not every town has a public high school. So, to make sure that every student has access to a quality high school education, Vermont has established the Town Tuition Program, where towns provide funding for students to attend a public school in another town or enroll at a private school.

This program has been around since 1869, making it the oldest school choice program in the country. But because of a misguided court ruling in 1999, there was one exception to who these funds can go to: the school chosen by the parents or students can’t be religious.

A.H. v. French and E.M. v. French

In 2020, a family from the small town of South Hero requested tuition reimbursement for Rice Memorial High School, a Catholic school operated by the Diocese of Burlington.

The school district denied the request. Why? Because “Rice is a religious school.”

But the government cannot treat students at religious private schools worse than their neighbors who go to secular private schools—or deprive them from receiving a public benefit simply because the school they choose is religious. That’s unconstitutional, and that’s why ADF filed a lawsuit against officials (A.H. v. French).

As ADF Senior Counsel and VP of U.S. Litigation David Cortman said at the time, “Vermont isn’t required to subsidize private education, but once it decides to do so, the state can’t disqualify some private schools solely because they are religious.”

In 2017, Cortman argued the ADF case Trinity Lutheran Church of Columbia v. Comer at the U.S. Supreme Court. In a major victory for religious freedom, the Court affirmed in Trinity Lutheran that a state cannot deny “a qualified religious entity a public benefit solely because of its religious character.”

Vermont officials’ discrimination against religious schools was clearly unconstitutional.

Thankfully, in 2021, the 2nd Circuit Court of Appeals twice ruled in favor of our clients to halt that unjust discrimination.

Despite these rulings, however, Vermont officials indicated they would continue digging in their heels and discriminating against religious students, parents, and schools. That led ADF to file a second case, E.H. v. French.

While both cases were still in litigation, the U.S. Supreme Court ruled on a similar case, Carson v. Makin. The Court ruled that the state of Maine cannot exclude students who attend religious schools from a government program in which they are otherwise qualified.

Following the ruling, Vermont officials agreed to settle in both French cases. The settlement ensured families who choose to send their children to religious schools can participate in the Town Tuition Program.

(These cases aren’t the only victories ADF has won for religious freedom in Vermont. Read about another case, A.M. v. French, here.)

Outcome

The First Amendment ensures that Americans can freely exercise their religion. If a state offers tuition benefits to secular private schools, it must offer the same benefits to religious private schools.

By reaching a settlement with Vermont, ADF attorneys affirmed families’ rights to choose religious schools for their children and receive the same benefits as everyone else.

Case timeline

• September 2020: ADF attorneys filed their first lawsuit against Vermont officials for discriminating against religious schools in the Town Tuition Program.
• January 2021: A district court agreed Vermont could not exclude families from the tuition benefit solely because of a school’s religious affiliation, but it did not stop the state from excluding ADF’s clients from the program. ADF attorneys appealed to the U.S. Court of Appeals for the 2nd Circuit, which issued a temporary order prohibiting Vermont officials from discriminating against students who attend religious high schools in the state’s Town Tuition Program.
• February 2022: ADF attorneys filed a second lawsuit against Vermont officials.
• June 2022: The U.S. Supreme Court ruled in Carson v. Makin that Maine cannot exclude students from government programs because they attend religious private schools. The decision had direct implications for both French cases.
• November 2022: Vermont officials agreed to a settlement ensuring students at religious schools could receive tuition benefits just like everyone else. The state also agreed to reimburse the families who filed the lawsuits.

The bottom line

The government cannot exclude religious schools from generally available benefits because they are religious.

Learn more:

How Vermont officials prevented families from choosing religious schools in their Town Tuition Program: