New England Christian schools ask appeals courts for justice against state discrimination

Christian schools in New England are fighting for their right to participate in state-run programs without compromising their beliefs, including that sex trumps gender identity, sexuality is reserved for heterosexual marriage and Christianity is the only path to salvation.

Public interest law firms announced appeals of lower court decisions in favor of Maine and Vermont in the 1st and 2nd U.S. Circuit courts of appeal on behalf of Crosspoint Church, which runs Bangor Christian School, and Mid Vermont Christian School and a family whose children attend there.

Both concern the courts' refusal to apply "strict scrutiny," the hardest burden for governments to meet, to state laws that infringe on religion, instead reviewing them under the much-lower rational basis test, mocked by the Institute for Justice as "judicial willingness to turn a blind eye to the misconduct of other branches," invented out of "whole cloth" by the Supreme Court.

It was BCS families that challenged Maine's four-decade practice of excluding some religious but not any secular private schools from the "town tuitioning" program, which gives tuition to families without a local public high school, prevailing at the Supreme Court two years ago.

Justice Samuel Alito foreshadowed the result of Carson v. Makin in oral argument, saying Maine's practice favors "watered down" religious beliefs by exempting schools that teach "universal moral and spiritual values" from the "sectarian" designation, which applies to "discriminatory" schools – those that make absolute-truth claims or hire only fellow believers.

But as the families were waiting for SCOTUS to accept their petition, the state's Legislature created a "poison pill" to dissuade religious schools from participating, First Liberty Institute's Crosspoint appeal alleges.

It amended the Maine Human Rights Act's education provision to narrow the "preexisting religious exemption for the sexual orientation and gender identity provisions" to protect only non-participating religious schools.

The Legislature also protected students' religious expression without letting participating religious schools teach their beliefs and enforce their codes, such as prohibitions on "sexual activity outside of marriage" and "identifying as a gender other than their sex at birth," the appeal says.

The lower court did not issue a preliminary injunction against the state, saying Crosspoint was unlikely to win against a law that is “neutral, generally applicable, and rationally related to a legitimate government interest" even though the state waited until it was sued to remove a provision that "categorically exempted single-sex schools" from discrimination provisions.

Crosspoint asked the 1st Circuit to order the lower court to permanently protect it from Maine's enforcement of MHRA provisions that prohibits the church from "hiring only co-religionists if it participates" in town tuitioning and the narrowed religious exemption.

The brief emphasizes that U.S. District Judge John Woodcock's Feb. 27 ruling acknowledges the "hard-fought and significant victory" the plaintiffs achieved at the Supreme Court in the Carson precedent, only to have the Legislature and Maine attorney general "largely" snatch away "the fruit of their victory."

The judge noted the then-speaker of the Maine House explicitly justified the changes to the law to preempt a negative Supreme Court ruling and the state attorney general promised to enforce the MHRA against religious schools in the tuitioning program, saying BCS's beliefs specifically "promote discrimination, intolerance, and bigotry" and are "inimical to a public education."

Woodcock simply used the wrong standard of review, let the state off the hook for belatedly removing the single-sex exemption that made the law not generally applicable, and didn't find "significant evidence" of religious animus by the Legislature, just its goal of "ensuring uniformity" in anti-discrimination law, the appeal says.

This tees up the 1st Circuit to grant relief under the correct standard of judicial review, it says.

Alliance Defending Freedom's Mid Vermont appeal also cites 2022's Carson precedent, asking the 2nd Circuit to order a lower court to issue a preliminary injunction reinstating the school's "full membership" in the Vermont Principals Association.

The VPA expelled Mid Vermont from middle- and high-school athletics competition because it forfeited a girls' basketball game against a team with a biological male player rather than violate its religious beliefs that "sex is God-given and immutable" by affirming that "the males who play in the girls' league are females," the appeal says.

The Rutland Herald identified that male player on the private Long Trail School team as 6-feet, 1-inch Rose Johnson, hailed by the Manchester Journal as an "elite rim protector" whose team nickname is "Not in My House." 

Mid Vermont's lawsuit last fall alleged it had been "effectively blacklist[ed]" from both state athletics and "co-ed academic competitions" due to its belief that biology determines sex.

There was nothing neutral and generally applicable about the punishment, given that VPA let three girls' basketball teams forfeit rather than play an opponent whose player had a "COVID-19 mask mandate" exemption and the association has "widespread discretion in applying the policies at issue here," ADF's appeal says.

The COVID forfeits are additionally notable because the Vermont Agency of Education's school-reopening policy ordered districts to develop plans to prevent and address "[s]tigma, discrimination, or bullying" against those allowed to not wear a mask, the brief says.

"Quite the opposite, a VPA representative suggested that the school with the mask-exempt athlete might be penalized in state tournament seeding if too many of their wins came from opposing-team forfeits" and that schools that want to avoid that athlete can just forfeit.

Mid Vermont reached out to the VPA before the tournament, asking if Long Trail would agree to bench Johnson to protect its religious beliefs, the fairness of the game and the safety of the female athletes.

VPA refused while mischaracterizing the flexibility in its own gender-identity policy, which says participation is "resolved on a case-by-case basis" and it can waive its policies upon request, the appeal says. ADF emphasized, in italics, it has a related policy that states "all individuals should be treated with dignity, fairness, and respect."

The association went scorched-earth after Mid Vermont announced why it couldn't play Long Trail, issuing a press release that it had made an "immediate determination of ineligibility" and banned the school from all competition, including "geography and spelling bees, science and math fairs, drama festivals, and debate competitions," the appeal says.

VPA Executive Director Jay Nichols trashed the school in legislative testimony two days later, expressing thankfulness that Johnson didn't attend Mid Vermont, with its "blatant discrimination under the guise of religious freedom." He said it "doesn't take a rocket scientist to see that these schools and their far right supporters are gearing up for another lawsuit."

But Nichols himself failed his obligations under VPA rules by not giving the school written notice of its "probable violation" and the "recommended penalty" and its right to appeal, while ignoring the policy's explicit provision of temporary suspension and imposing immediate ineligibility without any support in the policy, the appeal says.

When the VPA upheld the decision, Mid Vermont's athletes had to play in a "less-competitive" Christian league spread across New England, meaning they have to spend twice as long in travel, pay more for it, take overnight trips and miss more school, according to ADF.

Its athletes are "shut out from state tournaments and from competing in state championships" – a coach's basketball award-winning son has "diminished" potential for scholarships – and the school has lost students due to VPA's blockade.