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Montpelier, Vt., Oct 1, 2021 / 10:58 am (CNA).

A religious freedom law firm has filed a motion in federal court asking a judge to make permanent a preliminary injunction which says Vermont cannot refuse to fund tuition for religious institutions that would otherwise qualify for the funding. 

Represented by Alliance Defending Freedom, four Catholic high school students, their parents, and the Catholic Diocese of Burlington are involved in A.H. v. French. They claim that the state is discriminating by refusing to allow religious schools to benefit from the state’s town tuition program.

Courts ruled in the students’ favor in both January and June, granting them preliminary injunctions. Nevertheless, some school districts in the state have indicated they will reduce tuition benefits in proportion to the religious components of religious schools.

ADF filed a motion Sept. 21 in the district court asking them to make the preliminary injunction permanent, “and to rule that the school districts [in the] State of Vermont cannot reduce the families’ benefits because the schools are religious.” 

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 amended a January-issued preliminary injunction which added that towns could not enforce the policy against religious school students. 

Originally, the Jan. 7 preliminary injunction solely “gave the school districts time to figure out how they wanted to comply with the Vermont constitution,” ADF told CNA.

In June, a three-judge panel of the court issued a ruling explaining their February order, citing 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. 

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

Citing Espinoza, 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. 

Now, Vermont school districts are sending out letters to families and religious schools saying they won’t provide tuition benefits for the religious components of programs, ADF told CNA. The districts are also saying they will reduce families’ tuition rates in relation to “how much religion is in the schools’ programming,” according to ADF. 

“People of faith deserve equal access to public benefits everyone else gets. This has been repeatedly affirmed by the U.S. Supreme Court, as the 2nd Circuit’s ruling explained,” said ADF Legal Counsel Paul Schmitt in a Sept. 22 statement. “Once Vermont chose to provide school choice, it could not disqualify some private schools solely because they are ‘too religious.’” 

“For too long,” Schmitt added, “Vermont has unconstitutionally forced families to choose between exercising their religion or enjoying a publicly available benefit. We are asking the court to put a stop to any notions the state has to continue engaging in that discrimination.”

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.