Law & Courts

Court Backs Religious-School Student’s Participation in Vermont Dual-Enrollment Program

By Mark Walsh — January 15, 2021 4 min read

A federal appeals court on Friday held that the exclusion of a Catholic school student from a Vermont program for some high school students to dual-enroll in college courses at public expense is likely unconstitutional under recent U.S. Supreme Court rulings on the free exercise of religion.

A panel of the U.S. Court of Appeals for the 2nd Circuit, in New York City, unanimously overturned a federal district court judge and held that a student at Rice Memorial High School, part of the Roman Catholic Diocese of Burlington, Vt., merited a preliminary injunction blocking the exclusion of religious school students from the Dual Enrollment Program.

The student, identified in court papers as A.H., lives in South Hero, Vt., one of many communities in the state that does not operate a public high school and instead allows parents to send their children to private schools under the long-standing Vermont practice of “tuitioning.”

In litigation going back more than 20 years, courts have ruled that the Vermont Constitution’s clause barring compelled support of religion imposes limits on whether public funds may be used to pay tuition of students attending religious schools.

The Dual Enrollment Program allows high school juniors and seniors to take as many as two college courses at public expense. The Vermont Agency on Education has interpreted state law to essentially bar students at religious schools from participating, A.H.’s lawsuit says. In 2015, court papers say, a coordinator of the program said that “students at a Christian or parochial school or privately funded students are not eligible for Dual Enrollment.”

When A.H. sought to attend two science courses at the University of Vermont, her public school district denied her application for the Dual Enrollment Program.

A.H. and her parents, along with Rice Memorial High School, challenged the exclusion of religious school students under the First Amendment’s free exercise of religion clause. Last March, a federal district court denied the plaintiffs’ request for a preliminary injunction and said they were unlikely to succeed on the merits of their claims.

In June, however, the Supreme Court decided Espinoza v. Montana Department of Revenue, holding that a Montana state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a state tax credit for scholarship donations. That decision built on a 2017 high court ruling, Trinity Lutheran Church of Columbia v. Comer, which held that Missouri had violated the free exercise clause when it refused to allow a church to receive a grant from a state program to improve the safety of playgrounds.

Soon after the Espinoza decision, the 2nd Circuit court issued an emergency injunction to A.H. allowing her to participate in the Dual Enrollment Program this school year. The court then heard arguments on appeal, and in its Jan. 15 decision in A.H. v. French, ruled for the student and the Catholic high school.

“After Trinity Lutheran and Espinoza, [A.H. and the school] have a clear likelihood of success on the merits of their as-applied First Amendment claim,” the 2nd Circuit court said. “The record on this appeal plainly evidences religious discrimination. In the seven years since the DEP was enacted, no religious schools nor any of their students have ever been approved to participate.”

The decision was unanimous by two members of a three-member panel that heard arguments in the case. The third member of the panel, Senior U.S. Circuit Judge Ralph K. Winter, died in December.

The main opinion by Judge John M. Walker Jr. and a concurrence by Judge Steven J. Menashi discuss some quirks of Vermont’s tuitioning program, including that some districts do pay tuition for students attending religious schools because earlier court rulings allowed such payments when “adequate safeguards” were observed. (They say the state has never clearly outlined what those adequate constitutional safeguards are.)

Walker said that the evidence appears to show that religious school students are categorically excluded from the Dual Enrollment Program, a result that is not necessary under the First Amendment’s prohibition on government establishment of religion.

“Any establishment clause objections would be particularly unfounded here, because Vermont funds the DEP by paying tuition directly to Vermont colleges—not religious high schools,” Walker said.

The 2nd Circuit decision is at least the second by a federal appeals court to apply the Supreme Court’s Espinoza decision to a quirky state program of tuition aid.

In October, a panel of the U.S. Court of Appeals for the 1st Circuit, in Boston, upheld the state of Maine’s exclusion of “sectarian” schools from its program of paying private school tuition for students in communities without high schools, notwithstanding the Espinoza ruling.


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