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Despite court rulings, VT indicates it may continue discriminating against students at religious high schools

ADF attorneys ask district court to rule conclusively in favor of religious students, schools
Published On: 9/22/2021

Related Case: A.H. v. French


BURLINGTON, Vt. – Despite a June ruling from the U.S. Court of Appeals for the 2nd Circuit which halted Vermont school districts’ exclusion of religious students and schools from a state tuition program open to nearly everyone else, government officials have indicated they may resume their discrimination once a preliminary injunction currently in place expires.

In light of that, Alliance Defending Freedom attorneys filed a motion Tuesday in federal district court on behalf of four Catholic high school students, their parents, and the Roman Catholic Diocese of Burlington that asks the court to definitively rule in their favor in light of the 2nd Circuit’s ruling, which relied on recent U.S. Supreme Court rulings.

“People of faith deserve equal access to public benefits everyone else gets. This has been repeatedly affirmed by the U.S. Supreme Court, as the 2nd Circuit’s ruling explained,” said ADF Legal Counsel Paul Schmitt. “Once Vermont chose to provide school choice, it could not disqualify some private schools solely because they are ‘too religious.’ When the state offers parents school choice, it cannot take away choices for a religious school. The U.S. Supreme Court’s Espinoza decision last year reaffirmed as much and built on its decision in the ADF case Trinity Lutheran Church of Columbia v. Comer. For too long, Vermont has unconstitutionally forced families to choose between exercising their religion or enjoying a publicly available benefit. We are asking the court to put a stop to any notions the state has to continue engaging in that discrimination.”

The state’s Town Tuition Program provides tuition benefits for students who live in towns without public schools. Towns that pay tuition for their students instead of maintaining a public high school are called “sending towns,” and they directly provide tuition on behalf of their students to any private school that the family chooses. Students may use this benefit at any public school or approved secular private school, but the towns denied the benefit to students who chose religious private high schools. That included Rice Memorial High School, which the Roman Catholic Diocese of Burlington owns and operates.

Following direction from the secretary of the Vermont Agency of Education, some school districts are now asking private schools to restrict their use of the tuition benefits. ADF attorneys explain that, because this certification only applies to religious schools, it is not neutral and therefore unconstitutional. The First Amendment bars even “subtle” departures from neutrality and “governmental hostility which is masked, as well as overt,” according to relevant U.S. Supreme Court decisions.

Other school districts, also following the state’s lead, are requiring religious schools to estimate how religious their program is, so that they can proportionately reduce the families’ tuition benefit. But the same U.S. Supreme Court decisions say that religious families are entitled to “an equal share of the rights, benefits, and privileges enjoyed by other citizens” and that the government cannot “impose special disabilities” because schools are religious. As the Supreme Court wrote in one of those decisions, when “the object of a law is to infringe upon or restrict practices because of their religious motivation, the law is not neutral,” and thus “it is invalid.”

“Despite the U.S. Supreme Court’s clear reminders, the school districts and Vermont refused to relent until this Court and the Court of Appeals intervened,” explains the ADF motion for summary judgment filed Tuesday with the U.S. District Court for the District of Vermont. “And even now, Defendants [government officials in Vermont] are reserving the right to resume their discrimination. Plaintiffs [the families and schools who were denied] are entitled to judgment as a matter of law because Defendants violated their clearly established rights.”

Thomas E. McCormick, one of nearly 3,500 attorneys allied with ADF, is serving as co-counsel for the students, their parents, and the diocese in the case, A.H. v. French.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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