Court blocks Vermont from barring religious school students from tuition program

Students seen in a high school classroom.
Students seen in a high school classroom. | Reuters/Stephane Mahe

A federal appeals court has ruled in favor of Catholic high school students who sued Vermont over a policy barring students who attend religious high schools from accessing a high school tuition program.

The U.S. 2nd Circuit Court of Appeals issued an emergency injunction pending resolution before a three-judge panel, barring the state from preventing students who attend religious high schools from accessing the state’s Town Tuitioning Program.

The program provides students living in towns that don’t have access to public high schools with tuition funds to use at a private school of their choice.

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But the state has prevented the use of those funds to pay for students to attend faith-based institutions.

The 2nd Circuit ruled last Friday that the appellants have “established a substantial likelihood that they will prevail on the merits of their Free Exercise claims against the School Defendants.”

“School Defendants denied tuition reimbursement payments to RMHS solely because of its religious affiliation,” the order authored by Court Clerk Catherine O’Hagan Wolfe states.

The case, A.H. v. French, was brought on by four Catholic high school students, their parents and the Roman Catholic Diocese of Burlington.

They are represented by the Alliance Defending Freedom, a prominent national legal nonprofit that focuses on religious liberty and free speech cases.

ADF Legal Counsel Paul Schmitt argues that “people of faith deserve their equal share of generally available public benefits.”

“Because Vermont decided to provide funds for private education when public schools aren’t readily available, it cannot refuse to allow families to use those funds at some schools just because they are religious,” Schmitt said in a statement.

“The government can’t discriminate against religious students and their families by refusing to give them the same benefit that their neighbors receive.”

Schmitt contended that the order “is consistent with” the U.S. Supreme Court’s ruling in the 2017 case of Trinity Lutheran Church v. Comer. The Supreme Court ruled by a vote of 7-2 that Missouri could not prevent a church daycare from accessing a secular aid program to help make playgrounds safer for children because it is a religious organization.

“[This] helps ensure that Vermont families who choose a faith-based education can enjoy the same publicly available opportunities as other families while this lawsuit moves forward,” Schmitt said.

Last June, the Supreme Court ruled 5-4 in Espinoza v. Montana Department of Revenue that religious schools can qualify for a state tax credit program even when the state constitution prevents tax dollars from going to religious institutions.

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious,” Chief Justice John Roberts wrote in the opinion.

Vermont’s tuition program is the oldest publicly funded school choice system and dates back to the early 1800s.

Last October, the U.S. 1st Circuit Court of Appeals ruled against Maine parents who sued the state over a policy that excludes religious schools from its state tuition program despite the Supreme Court’s earlier ruling that year striking down similar restrictions in Montana. Maine’s tuition program is the second-oldest in the country.

“[T]he Supreme Court of the United States has decided two cases that the plaintiffs contend require us now to reverse course. Even accounting for that fresh precedent. However, we see no reason to do so,” the panel’s ruling, authored by Judge David Barron, an Obama appointee, reads.

In December, another lawsuit was filed against Vermont, the state’s secretary of education, the state board of education and four of Vermont’s public school districts by parents represented by the Chicago-based Liberty Justice Center. The nonprofit focuses on legal cases related to school choice.

The lawsuit argues that the program is unfair because it allows children residing in certain school districts to attend the schools of their choosing, while it denies this same right to students in other school districts.

“Vermont’s Town Tuitioning system works well for the favored few who happen to live in a location where it is available,” Brian Kelsey, senior attorney at the Liberty Justice Center, said in a statement. “Unfortunately, only 17 percent of Vermont school children are afforded some form of choice under the present system. Those who are ineligible are at a distinct, and unconstitutional, disadvantage.”

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