Court affirms equal treatment for religious schools

A federal appeals court on Wednesday extended a prior ruling that barred Vermont from withholding tuition funds from students who want to attend private religious schools in rural areas not served by a public school—even if the money incidentally funds religious activities.

Vermont’s Town Tuition Program (TTP) entitles students living in an area without a public school to a tuition payment toward the independent high school of their choice. State has provided tuition funds only to students who attend private, secular schools for over 20 years, a practice Circuit Judge Steve Menashi, writing for a three-judge panel, declared discriminatory.

“The Supreme Court has made clear that the prevailing practice in Vermont—maintaining a policy of excluding religious schools from the TTP—is unconstitutional,” Menashi wrote, pointing to the court’s 2020 ruling in Espinoza v. Montana Department of Revenue. In Espinoza, the justices struck down Montana’s Blaine Amendment, a state constitutional provision that barred the use of public funds for religious entities.

Menashi emphasized that Vermont’s attempt to distinguish between impermissible discrimination based on the religious identity of an individual or organization and permissible withholding of public funds that might be used for religious purposes—a question left open by Espinoza—was meaningless. “Status-based discrimination remains status-based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses,” the Trump-appointee concluded.

The distinction between religious status and religious use figures prominently in another federal appeals court decision at odds with the Vermont ruling. Last October, the 1st U.S. Circuit Court of Appeals ruled that a similar Maine program subsidizing private-school tuition could exclude religious schools. “Sectarian schools are denied funds not because of who they are but because of what they would do with the money—use it to further the religious purposes of inculcation and proselytization,” Circuit Judge David Barron wrote.

Earlier this year the three families that filed the Maine lawsuit asked the Supreme Court to review the case. Conflict between the circuits may improve chances that the justices will take the case.

“Once Vermont chose to subsidize private education, it could not disqualify some private schools solely because they are ‘too religious,’” said Alliance Defending Freedom counsel Paul Schmitt, who represented the students. “When the state offers parents school choice, it cannot take away choices for a religious school.”