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Vermont flouts justices by banning Christian school from tuition, athletic programs: lawsuit

Refusal to play girls' basketball team with tall male player, nickname "Not in My House," leads to double-standard "immediate determination of ineligibility," school says.

Published: November 24, 2023 12:52am

Updated: November 29, 2023 2:06pm

Vermont education regulators, principals and several school districts are flouting a recent Supreme Court precedent that prohibits religious discrimination in tuition assistance, according to a lawsuit filed this week by parents whose children attend a religious school.

The Green Mountain State also ignored its own federal appeals court by banning Mid Vermont Christian School from participation in the Town Tuitioning and Dual Enrollment programs, the parents allege.

The first program gives families in school districts without a high school funds to use for private education or public education in other districts, and the second pays for upperclassmen's college courses.

MVCS says it has been excluded from both due to its "biblically based Christian beliefs on marriage, sexuality, and gender."

It has also been "effectively blacklist[ed]" from participation in both state athletics and "co-ed academic competitions" for subjects including math and debate, because it "believes biological boys are boys and cannot affirm otherwise," the suit alleges.

The Vermont Principals' Association (VPA), which oversees 28 sports and activities for 270 member schools and "works hand-in-hand" by law with the Vermont Agency of Education, booted MVCS from athletics competition in May.

That's because the school forfeited a girls' basketball playoff game against private Long Trail School, whose star player is biologically male player Rose Johnson, identified by the Rutland Herald as 6-feet, 1-inch tall. The Manchester Journal called the transgender player an "elite rim protector" whose team nickname is "Not in My House." 

MVCS head of school Vicky Fogg told Valley News that a male opponent "jeopardizes the fairness of the game and the safety of our players."

The parents' lawyers at the Alliance Defending Freedom (ADF) pointed Just the News to video of two games featuring Johnson from February 2023, shortly before the forfeit.

The player towers over the opposing Proctor team, nabbing two quick offensive rebounds for a putback (1:02:33), and commits a hard foul to the head of a much smaller Poultney player driving to the rim (1:00:48). 

The children-plaintiffs include players on the girls' basketball and volleyball and boys' basketball and track teams, while a parent-plaintiff coaches girls' basketball.

Vermont is punishing MVCS because the former "believes sex is mutable and biological differences do not matter," an "orthodoxy" it can't constitutionally enforce as a condition of participation in the "generally available" programs, the suit alleges. 

It's trying to force the school into "an impossible Hobson's Choice" — keep state money and access to competition, or create the "appearance to its students and families that the School does not adamantly hold the beliefs it professes."

"Vermont finds new ways to discriminate against people of faith," ADF legal counsel Jacob Reed told Just the News, referring to the public interest law firm's settlement of two similar tuition-reimbursement lawsuits against Vermont nearly a year ago. 

The state has gone from discriminating against schools "simply because they were religious" to discriminating "because they do religious things," he wrote in an email.

The state circumvented the 2nd U.S. Circuit Court of Appeals and Supreme Court decisions barring discrimination in the tuition and dual-enrollment programs by requiring "approved independent schools" like MVCS to affirm they comply with state laws against discrimination based on religion, sexual orientation and gender identity, the plaintiffs claim.

The Agency on Education refused to let MVCS add a clause to the addendum it signed that recognizes the agreement "must be read consistent with existing law and the U.S. and Vermont Constitutions," which grant MVCS the right to "make decisions based on its religious beliefs," including hiring, discipline and "associating with others."

In practice, this means students must adhere to "policies on bathroom and locker room usage, pronoun usage, dress codes, and participation in athletics" based on its beliefs.

Instead, state officials sent the school a form it needed to continue operating this academic year but which would render it a "recognized school" without access to the programs, the suit says. 

The Hartland and Waits River Valley school boards demanded the return of tuition money they had paid families to attend MVCS after learning last month its status had changed.

The VPA refused to recognize that it has contradictory policies on coed competition when MVCS protested against having to play against Johnson, the Long Trail male player, in the playoffs, according to the suit.

It has both gender identity rules based on agency guidance and the state public accommodations law, and a "boys/girls fairness policy" intended to "protect opportunities for girl athletes," the suit says, quoting from the latter.

The school said its fear for its female athletes is not misplaced, citing a well-known incident of a North Carolina female volleyball player severely injured by a male player who identifies as a woman. Payton McNabb testified before the Legislature about ongoing health problems from the "concussion and neck injuries" caused by the spike to her face.

VPA practiced a double standard against MVCS by making "an immediate determination of ineligibility'' and expelling the school as a member for forfeiting the game — an action it didn't take at least three times when schools "refus[ed] to play against a player with a COVID-19 exemption," the suit says.

The association then falsely told the media that MVCS didn't share its rationale for forfeiting the game before its press statement and that VPA didn't have an appeals process, according to the plaintiffs. 

Executive Director Jay Nichols also testified before a legislative committee considering the tuition program that MVCS supports ''blatant discrimination under the guise of religious freedom."

The office of Vermont Attorney General Charity Clark responded to Just the News on behalf of the State Board of Education, one of the defendants. 

"We are aware of the lawsuit but have not been served with the Complaint. Once we are served, we will respond at the appropriate time," Outreach and Communications Coordinator Amelia Vath wrote in an email.

VPA responded to queries on Nov. 29. Because the school "never appealed by the legal deadline," the May decision is "therefore binding," it said, providing that decision.

"Mid-Vermont Christian School has every right to teach its beliefs to its own students," VPA's press release says. "It
cannot, however, impose those beliefs on students from other public and private schools; deny students from other schools the opportunity to play; or hurt students from other schools because of who those students are." 

The other defendants did not respond.