E.W. v. French

BURLINGTON, Vt. – After more than two decades of discriminating against families who choose to send their children to religious schools, Vermont officials have agreed to apply the state’s tuition benefit program fairly. Alliance Defending Freedom attorneys have favorably settled two lawsuits on behalf of several families and the Diocese of Burlington who sued state officials for discriminating against students and denying them a widely available tuition benefit because they attended religious schools. The U.S. District Court for the District of Vermont entered a stipulated judgment enforcing the settlement agreement and the parties moved to settle the cases Wednesday.

“All parents should be able to send their kids to schools that are the best fit for them, and the First Amendment protects parents’ right to choose religious schools.” said ADF Legal Counsel Paul Schmitt. “For more than two decades, Vermont unlawfully excluded religious schools and their students from public benefits, essentially eliminating school choice for many parents in the state. As the U.S. Supreme Court recently concluded in Carson v. Makin, the government cannot eliminate families’ benefits just because they choose to use those benefits at religious schools that provide religious instruction.”

The state’s Town Tuition Program provides tuition benefits for students who live in towns without public schools. Those towns pay tuition to other schools on behalf of their students instead of maintaining a public high school. Students were able to use this benefit at any public school or approved secular private school they chose, but the towns denied the benefit to students who chose religious private schools under the state's “adequate safeguards” requirement, the subject of both lawsuits, A.H. v. French and E.W. v. French.

As part of the settlements, state and local government officials agreed that based on the Carson decision, Vermont's requirement is unconstitutional and unenforceable. Vermont’s Agency of Education issued a letter to local school districts on September 13, informing them that the First Amendment requires districts to treat tuition requests for religious schools the same as secular school tuition requests. The letter also informed school districts that they cannot penalize religious schools for giving scholarships to students who aren’t eligible for the tuition program. As a result of the stipulated judgment, the education secretary and school districts are prohibited from enforcing Vermont’s discriminatory law. The school districts are also required to process families’ tuition requests fairly.

The settlement also means that the plaintiff families who requested tuition but were wrongly denied by their school districts will be reimbursed for the tuition they paid out-of-pocket. The school districts will reimburse the plaintiff families directly; other families will have the opportunity to request reimbursement from the school districts. The state of Vermont and the school districts will also pay the families’ attorneys’ fees. In light of the settlement, ADF attorneys filed a stipulation of dismissal Wednesday in E.W. v. French and A.H. v. French.

“We are thankful the local school districts decided to do the right thing and give families the benefits they were entitled to,” Schmitt continued. “Many of these families made great sacrifices to provide their kids with a faith-based education and we hope even delayed benefits can provide some financial help.”

In June, the U.S. Supreme Court ruled in Carson v. Makin that the state of Maine cannot exclude students who attend religious schools from a government program in which they are otherwise qualified. Attorneys with ADF and Jones Day had argued for that result in a friend-of-the-court brief they filed on behalf of the Jewish Coalition for Religious Liberty.

Thomas McCormick, who has practiced in Vermont for more than 40 years, is serving as local counsel on behalf of the families and the Diocese of Burlington. He is one of more than 4,600 attorneys in the ADF Attorney Network.

Alliance Defending Freedom is an alliance-building, non-profit legal organization committed to protecting religious freedom, free speech, parental rights, and the sanctity of life.

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