Appeals Court Blocks Vermont From Excluding Religious Schools Students From State Program

August 6, 2020 Updated: August 6, 2020

A federal appeals court has blocked Vermont from enforcing a rule that bars students attending religious schools from participating in a state program that allows high school juniors and seniors to dual-enroll in college courses before they graduate.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit on Wednesday granted (pdf) an emergency request to block Vermont from enforcing a rule that bars religious schools and their students from participating in the state’s Dual Enrollment Program while their appeal is pending. The program, which aims to help students reach postsecondary readiness, provides public funding directly to colleges so that eligible high schools students can take college classes before they graduate from high school.

The program is offered to students who are enrolled in a public school, home studies, or an approved independent school that is either designated as the public secondary school for the student’s district of residence or one that receives publicly funded tuition from a student’s district of residence. But because Vermont’s Constitution prohibits public funding to go to religious schools that lack “adequate safeguards against the use of such funds for religious worship,” religious schools are effectively precluded from participating.

In the case at hand, four students, their parents, and a Roman Catholic diocese sued the state’s agency of education secretary in 2019, alleging the state was discriminating against students based on the religious status of the school they attended. They claim that the program’s student eligibility requirements violated their First and Fourteenth Amendments under the U.S. Constitution. The district court found for the state earlier this year, prompting an appeal to the circuit court.

While the appeal is playing out in the court, the student’s lawyers asked the court to grant an emergency injunction pending appeal as one of the students, A.H. is a senior at the religious school Rice Memorial High School and is nearing the time when she has to submit college applications. She is relying on the court’s ruling to decide her fate on whether she can participate in the program, they said.

“This is A.H.’s last chance to participate in the Dual Enrollment Program. She should not have to choose between exercising her faith and accessing this public benefit. Nor should her school. They need this Court to reaffirm that they, too, are members of the community who deserve an equal shot at educational success. This Court should enter the requested injunction saying so before it’s too late,” her lawyer said.

In A.H.’s case, her lawyers also claimed discrimination because she comes from a town that only offers a public elementary school but not a public high school. In Vermont, the school district is required to provide secondary education to these students under its “Town Tuition Program.” To satisfy this requirement, eligible towns must offer to pay tuition for their students to either attend a public school in another district or an approved private school.

As A.H. had chosen to attend a religious school, she is not eligible for the tuition or the dual enrollment program, even though her similarly situated peers attending public schools in another district or secular private schools are eligible, her lawyers argued.

The state denied the claim that the law is discriminatory, arguing in response that the students had failed to provide evidence that eligible high school students who attend religious schools are excluded from participating in the dual enrollment program solely because of the religious status of their schools.

“Appellants offer this Court no evidence of purposeful religious discrimination either,” the state argued. “They establish no basis to conclude that the District Court clearly erred or abused its discretion in assessing the facts and denying Appellants the same relief that they again seek here.”

The panel of the 2nd Circuit said on Wednesday that the students have a “strong likelihood of success on the merits of their claims” in light of a recent Supreme Court decision that ruled on a similar issue. That case, cited as Espinoza v. Montana Department of Revenue, centers on a Montana program that provides a dollar-for-dollar tax credit up to $150 for individuals who donate to non-profit organizations that fund scholarships for families who wish to send their children to private schools.

Shortly after the program was created, the state’s Department of Revenue enacted a rule that limits the program to non-religious schools to comply with the state constitution that barred public money from going to religious schools. Parents of students who attend a private religious school in Montana sued tax officials over the rule. A trial court sided with the families, saying that they could use the scholarships at religious schools.

But in 2018 the Montana Supreme Court reversed the trial court decision and invalidated the entire program.

The U.S. Supreme Court ruled in June (pdf) that Montana’s decision to limit the program had discriminated against religious schools and its students in violation of the Consitution’s Free Exercise Clause.

John Bursch, a senior counsel for Alliance Defending Freedom, welcomed the 2nd circuit’s decision, saying that “no state can discriminate against students based on which kind of school they attend.” Alliance Defending Freedom’s attorneys are representing two of the students, their parents, and the Roman Catholic Diocese of Burlington.

“It makes no sense for the state to say it will pay for a student from a public or secular private school to take a college course at a public university, for example, but then say that a student from a faith-based private school cannot receive the same funding to attend that exact public university class. That’s unconstitutional,” Bursch said in a statement.

The Epoch Times reached out to Vermont’s Agency of Education for comment.

Last year, the Justice Department filed a statement of interest in the Vermont case in support of the students, saying that they “have plausibly pled a First Amendment claim.”

“The State … ‘imposes a penalty on the free exercise of religion’: it forces students who are otherwise eligible for the Dual Enrollment Program to choose between ‘participat[ing] in [the] program or remain[ing] [enrolled at] a religious institution,'” the department wrote last year (pdf).

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