Two families and a Catholic diocese are suing the state of Vermont for discrimination after Catholic school students were excluded from a program that offers college classes to high school students at state expense.
Two students and their families, as well as the Roman Catholic Diocese of Burlington, have filed a federal lawsuit against the state’s education department over what they say is unlawful criteria for its Dual Enrollment Program, which gives students the ability to take publicly funded college courses to help them achieve post-secondary readiness.
Under the program, students who attend public and secular private schools and those who are homeschooled are eligible for the program to take classes funded by the government at 19 different institutions that provide both high school and college credit.
However, the state excludes students who attend private religious high schools from taking classes through the program.
The program was launched in 2013 and the exclusion of private religious schools is thought to be consistent with a Vermont Supreme Court ruling in 1999. The ruling found it unconstitutional for the state to pay tuition to sectarian schools as part of the state’s Town Tuitioning Program, a program that allowed parents in certain towns to send their children to private school at state expense.
“The State is penalizing parents for exercising their constitutionally protected right to choose a religious education for their children, and is discriminating against the faith-based schools they choose,” the lawsuit explained, adding that it violates both the free exercise and equal protection clauses found in the U.S. Constitution.
Although the top court in the state has ruled that allowing public funds to go to religious school violates the state constitution, the plaintiffs maintain that the state officials can’t plausibly argue that the Vermont constitution requires excluding religious high school students from a secular education program made available to other students.
The two students involved in the lawsuit attend Rice Memorial High School, a Catholic school under the authority of the diocese. Because of its status as a Catholic school, Rice Memorial is prohibited from entering into a Dual Enrollment Program participation agreement with the Vermont Agency of Education.
The plaintiffs are being represented by Thomas E. McCormick, one of more than 3,000 attorneys allied with Alliance Defending Freedom, a national nonprofit that is involved in prominent religious freedom cases. ADF has won nine U.S. Supreme Court cases in the last seven years.
“The state is paying for college courses, not tuition for a religious high school,” the lawsuit contends. “The Dual Enrollment Program statute discriminates against students attending religious high schools, not because of the content of college courses they wish to take, but instead because of the religious status of the high schools they attend.”
ADF legal counsel Christen Price argues that the government is “constitutionally required” to treat religious people equally. Price added that the state should not hold back students looking to pursue their educational goals.
“That’s especially true in this case, where the government isn’t spending any money on religious education,” Price stated. “Vermont is discriminating against students purely based on which kind of school they come from.”
In 1961, the Vermont Supreme Court ruled that towns paying tuition to religious schools violated the First Amendment of the U.S. Constitution.
That ruling was later overturned in 1994 after the Vermont Supreme Court found that a school board reimbursing tuition paid by parents whose child attended a religious school because their town did not have a public school did not violate the Establishment Clause of the First Amendment.
But in 1999, the Vermont Supreme Court ruled again that reimbursing parents who send their children to religious private schools did violate the state constitution.
ADF argues that the U.S. Supreme Court’s decision in Trinity Lutheran v. Comer affirms that a state can’t deny “a qualified religious entity a public benefit solely because of its religious character.”
In 2017, the U.S. Supreme Court ruled in that case that Missouri violated the Constitution by barring a church from receiving public funds to help revamp its daycare playground even though such grants were given out to similar non-religious organizations. The church was represented by ADF in that case as well.
“The government is constitutionally required to treat religious people equally,” Price said in a statement. “As the U.S. Supreme Court held just the year before last, a state cannot discriminate against students by excluding them from generally available public benefits simply because they attend a religious school.”
The lawsuit asks the court to issue an injunction declaring that the criteria for the Dual Enrollment Program violates the First and Fourteenth Amendment rights of the plaintiffs.
Specifically listed as defendants in the lawsuit are heads of the Vermont Agency of Education and Vermont State Colleges System.
The Attorney General’s office, which will handle the case, told the state politics blog VTDigger.org that it has not had a chance to review the case.
“We’ll see what the arguments are and take a look at the law and go from there,” Assistant Attorney General Kate Gallagher told web outlet.