Federal court: Vermont can’t exclude religious schools from tuition program

A federal appeals court on Wednesday ruled that the state of Vermont cannot refuse to fund tuition for religious institutions that would otherwise qualify for the funding.

The June 2 ruling by the U.S. Court of Appeals for the Second Circuit changes a state no-aid policy that dates back more than two decades.

The case of A.H. v. French was brought by four Catholic high school students, their parents, and the Catholic Diocese of Burlington. They claimed that the state was discriminating by refusing to allow for religious schools to benefit from the state’s town tuition program.

The Catholic school students were represented in court by the Alliance Defending Freedom (ADF), a law firm promoting religious freedom.

In Vermont, residents of towns without public schools for all grade levels are eligible to have their tuition at another private school funded by the state, through the Vermont Town Tuition Program. The town pays tuition for students who attend eligible schools in lieu of operating a public school.

Previously, students who opted to attend religiously-affiliated schools were not eligible for tuition assistance, while students at secular private schools and public schools in nearby towns were eligible. In February 2021, the Second Circuit issued a mandate preventing towns from enforcing the policy against religious school students.

On Wednesday, a three-judge panel of the court cited the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer; in that decision, the court ruled that a Missouri no-aid clause could not be used to block a church-owned playground from accessing a public benefit it would otherwise be eligible for, simply on account of its religious status.

“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,’” the Second Circuit court judges stated.

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

“Once Vermont chose to subsidize private education, 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,” he said.

In June 2020, the Supreme Court further ruled in Espinoza v. Montana Department of Revenue that the state of Montana could not block public funding of religious institutions or causes, while allowing similar secular organizations access.

Citing the Espinoza ruling, Judge Steven Menashi of the Second Circuit court wrote that the Supreme Court had “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.’”

Instead of adjusting the state program to comply with the Espinoza ruling, “the officials who administer Vermont’s Town Tuition Program…nevertheless continued to discriminate against religious schools and students in violation of the first Amendment,” said the opinion.

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

Schmitt on Wednesday stated, “For too long, Vermont unconstitutionally forced families to choose between exercising their religion or enjoying a publicly available benefit.”

Other states, including neighboring New Hampshire and Maine, have similar town tuition programs which also exclude religiously-affiliated schools. In September, a family sued the New Hampshire Department of Education when it refused to pay tuition for a Catholic school.