VT families ask court to reject state's request to be let off the hook for religious discrimination

 

BURLINGTON, Vt. – An Alliance Defending Freedom attorney representing two students, their parents, and the Roman Catholic Diocese of Burlington will be available for media interviews Friday following a hearing in federal district court in a lawsuit over Vermont’s discrimination against children based on the religious status of the high schools they attend. ADF Legal Counsel Christen Price and a U.S. Department of Justice attorney will both argue at the hearing that the court should reject the state’s request to dismiss the lawsuit, A.M. v. French.

Vermont maintains a Dual Enrollment Program, under which high school students take college courses at public expense. The program’s main purpose is to promote opportunities for students to achieve postsecondary readiness through high-quality educational experiences. Students at public, secular private, and home-schools are eligible, but the state categorically excludes students at private religious high schools, such as Rice Memorial High School, which the Roman Catholic Diocese of Burlington owns and operates.

“Vermont is discriminating against students purely based on which kind of school they come from,” said Price. “Vermont’s program includes public, private secular, and home-school students. Only students from private religious schools are completely excluded, which is unconstitutional. As the U.S. Supreme Court affirmed in 2017 in Trinity Lutheran Church of Columbia v. Comer, a state can’t discriminate against students by excluding them from generally available public benefits simply because they attend a religious school. The court shouldn’t allow the state to skirt its responsibility to operate a fair and constitutional program.”

The U.S. Supreme Court’s Trinity Lutheran decision affirmed that a state cannot deny “a qualified religious entity a public benefit solely because of its religious character.” The court said such discrimination on the part of the state is “odious to our Constitution…and cannot stand.”

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, and the Court should deny the State’s motion to dismiss.”

The Dual Enrollment Program statute incorporates by reference the eligibility criteria for the separate and different Town Tuitioning Program. The Vermont Constitution has been interpreted to forbid state funding of religious secondary school education through the Town Tuitioning Program. But as the lawsuit observes, Vermont officials cannot plausibly argue that the state constitution requires excluding religious high school students from the Dual Enrollment Program as well.

Thomas E. McCormick, one of nearly 3,400 attorneys allied with ADF, is serving as co-counsel for the students, their parents, and the diocese.