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Vermont can't bar Christian school students from tuition program, appeals court says

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An empty classroom is seen at Hollywood High School on August 13, 2020, in Hollywood, California. |

A circuit court said Wednesday that the state of Vermont couldn't prohibit tuition funding from going to students who attend religious schools and detailed its reasons for halting what advocates say was "21 years of discrimination in Vermont’s program."

The U.S. Second Circuit Court of Appeals ruled in favor of four Catholic high school students, their parents and the Roman Catholic Diocese of Burlington, Vermont, by issuing an injunction to require the state to include students who attend religious schools in its Town Tuition Program.

The program provides educational vouchers for students living in towns that do not have public schools to attend a private school, but students who chose religious private high schools, such as the diocese's Rice Memorial High School, were denied the benefit. 

The students represented in this case applied for TTP payments to attend Rice Memorial but were denied. 

Although the court initially issued the injunction in January, it released the opinion this week outlining the reasons for halting the prohibition on religious schools in the program. 

Judge Steven Menashi, a Trump appointee, concluded that students going to religious high schools are “entitled to TTP funding to the same extent as parents who choose secular schools for their children, regardless of Rice’s religious affiliation or activities.” 

“Four years ago, the Supreme Court reminded states that it ‘has repeatedly confirmed that denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion that can be justified only by a state interest of the highest order…,’” Menashi wrote in a concurring opinion. 

“Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would ‘bar[] religious schools from public benefits solely because of the religious character of the schools,'" Menashi continued.

"The Court emphasized that ‘[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses’ and that a state cannot justify discrimination against religious schools and students by invoking an ‘interest in separating church and State more fiercely than the Federal Constitution." 

The judge stated that officials who administer the TTP program "continued to discriminate against religious schools and students in violation of the First Amendment."

“The Supreme Court has made clear that the prevailing practice in Vermont — maintaining a policy of excluding religious schools from the TTP — is unconstitutional," he added.

Attorneys with the Alliance Defending Freedom, which represented the plaintiffs, claimed the mandate violated the students’ First Amendment rights and the free exercise of religion by forcing families to choose between religion or a public benefit. 

“Today the court powerfully affirmed the principle that people of faith deserve equal access to public benefits everyone else gets,” ADF Legal Counsel Paul Schmitt said in a statement. 

“Once Vermont chose to subsidize private education, it could not disqualify some private schools solely because they are ‘too religious,’” he continued. “When the state offers parents school choice, it cannot take away choices for a religious school. … For too long, Vermont unconstitutionally forced families to choose between exercising their religion or enjoying a publicly available benefit.”

The defendants said the religious students' benefits were denied because the students wanted a right to religious education at the public's expense and claim this right does not exist. 

The Second Circuit's opinion indicates a circuit split as the First Circuit ruled last year against parents in Maine seeking state tuition assistance to put their children in a religious private school. 

The First Circuit shot down the argument that the Supreme Court's 2017 ruling in Trinity Lutheran v. Comer should be seen as a precedent for cases dealing with tuition for religious schools. The Supreme Court ruled that Missouri couldn't deny secular aid funding for a church to improve its daycare playground. The First Circuit upheld the notion that the Supreme Court didn't speak to government funds being used for religious purposes. 

Last June, the Supreme Court ruled by a narrow margin that religious schools can qualify for a state tax credit program despite a state constitution ban on public aid for religious entities.

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