Federal appeals court orders Vermont to let families use tuition program for religious schools

Lower court was wrong to let school districts devise new funding criteria while continuing to lock out families.

Updated: June 2, 2021 - 1:41pm

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Vermont must stop discriminating against families who want to use a local tuition program to attend a religious high school school, the 2nd U.S. Circuit Court of Appeals ruled Wednesday.

The opinion follows a February order to a district court to immediately stop Vermont Secretary of Education Daniel French from continuing to deny "tuition reimbursement" under the Town Tuition Program, regardless of the "religious affiliation or activities" of the families' chosen school.

A district court erred in letting school districts continue denying reimbursement while they revised program criteria, as long as they didn't use their original "precise rationale" that Rice Memorial was religious, the 2nd Circuit said.

The Supreme Court has confirmed twice in four years that states cannot withhold a "generally available benefit" solely because of the religious identity of the institution, including religious schools, to receive funding, the opinion reads.

School districts were following a 1996 state Supreme Court decision that permitted school districts to fund tuition at a religious school as long as "adequate safeguards" prevented the money from being spent on "religious education." 

However, the state never amended the program or provided guidance on those safeguards. And the secretary of education and some districts adopted a "blanket ban" on tuition for all religious schools or those deemed "pervasively religious," the 2nd Circuit also said.

A state education official said  that the department's "legal team" determined that last year's Supreme Court decision in Espinoza had no effect on this arrangement.

But the appeals court said the "prevailing practice" was unconstitutional. It is a "status-based exclusion" as opposed to a "use-based restriction on TTP funds."

The district court reached the correct merits but "failed to follow its own conclusions" by letting districts lock out families from tuition reimbursement even as the semester was about to start. The two students seeking to attend Rice Memorial cannot afford it otherwise.

"Without immediate access to the TTP pending the resolution of their case at trial, the petitioners will remain deprived of their constitutional right to the free exercise of religion," the opinion reads.

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