2nd Circuit halts Vermont's discrimination against children attending religious high schools

NEW YORK – The U.S. Court of Appeals for the 2nd Circuit issued an order Wednesday that halts Vermont’s discrimination against children based on the religious status of the high schools they attend. Alliance Defending Freedom attorneys represent two students, their parents, and the Roman Catholic Diocese of Burlington in the case, A.M. v. French, which challenged the discrimination in the state’s Dual Enrollment Program.

The program provides funding that allows Vermont high school juniors and seniors to dual-enroll in two free college courses before they graduate. Students at public, secular private, and home-schools are eligible, but the state categorically excluded students at private religious high schools, such as Rice Memorial High School, which the Roman Catholic Diocese of Burlington owns and operates. The 2nd Circuit halted the discriminatory treatment while the lawsuit moves forward, explaining that “In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue…, [the students, parents, and diocese] have a strong likelihood of success on the merits of their claims.”

“No state can discriminate against students based on which kind of school they attend,” said ADF Senior Counsel and Vice President of Appellate Advocacy John Bursch. “It makes no sense for the state to say it will pay for a student from a public or secular private school to take a college course at a public university, for example, but then say that a student from a faith-based private school cannot receive the same funding to attend that exact public university class. That’s unconstitutional.”

“In its 2017 decision in the ADF case Trinity Lutheran Church v. Comer, the U.S. Supreme Court made clear that states can’t discriminate against students by excluding them from generally available public benefits simply because they attend a religious school,” Bursch explained. “The Supreme Court said that kind of discrimination is ‘odious to our Constitution … and cannot stand.’ And in the newly issued Espinoza decision, the court said that states cannot discriminate in scholarship programs that pay for school tuition. That is exactly what has been happening in Vermont, and that’s why the 2nd Circuit’s order is on firm ground.”

In May, the U.S. Department of Justice filed a statement of interest in the Vermont case in support of the students, their parents, and the diocese, arguing that they “have plausibly pled a First Amendment claim.”

Thomas E. McCormick, one of nearly 3,100 attorneys allied with ADF, is serving as co-counsel for the students, their parents, and the diocese.

Alliance Defending Freedom is an alliance-building, non-profit legal organization that advocates for the right of people to freely live out their faith.