Lawsuit says Vermont is wrongly excluding religious schools from public benefits

Vermont authorities are treating a Christian family as “second-class” by excluding them from a state tuition assistance program, according to a newly filed lawsuit against the state.

Greg and Carrie Bishop filed the lawsuit last week that contends Vermont has violated their religious rights by cutting off access to a publicly available benefit because they chose a religious school for their children. The couple argues that a 2025 state law circumvents Supreme Court precedent that recognizes their right to participate.

“If the Bishops decided to send their daughter to one of the dozens of eligible secular private schools, the government would subsidize that; they would pay for that,” said Alliance Defending Freedom’s Jake Reed, an attorney for the family. “But because they’ve chosen a private Catholic school, they have to fork out money out of their own pocket. They don’t get the public benefit that their very tax dollars paid for.”

About half of sparsely populated Vermont’s 119 union and town districts don’t offer a public school option for at least one grade, and about a dozen districts have no schools at all. The state offers a Town Tuitioning Program that provides rural students with thousands of dollars of financial assistance to attend private or public schools elsewhere.

The Bishop family lives in central Vermont’s Barstow Unified Union School District, which doesn’t have a high school. The couple sent their youngest children to the nearby Roman Catholic high school, Mount St. Joseph Academy. As Christians, the Bishops wanted to provide their children with education in line with their beliefs. While the family isn’t Catholic, the family shares the “same core Christian beliefs” as Mount St. Joseph, the lawsuit states. The parents said their daughter tried public school, but the lack of Christian community caused her to struggle with depression that affected her both emotionally and spiritually.

The Catholic school’s tuition costs $7,500 per year, according to the lawsuit. While donations to the school cover part of that cost, the family hoped that assistance from the Town Tuitioning Program could help cover the rest of the cost for their youngest daughter’s senior year.

But a recent law made Mount St. Joseph ineligible to be part of the program. State legislators last year passed Act 73, which set new rules for private schools to receive funding from the program. The criteria define minimum class size requirements, which many religious schools don’t meet, and require a school to be located in a district that does not operate a public school. Also, at least 25% of the school’s enrollment during the 2023-24 school year must have been publicly funded students.

It is impossible for schools to meet the 25% requirement, the lawsuit contends. State rules barred religious schools from participating in the Town Tuitioning Program until the 2022–23 academic year, according to the lawsuit, adding that no religious schools had time to “reach the 25% requirement just one year later.”

Together, these three requirements create a “de facto religious exclusion” for schools, the lawsuit states. Before the act passed, 15 religious schools—including Mount St. Joseph Academy—were eligible for the program. Now none of them can receive funding, according to the lawsuit.

These requirements have ensured Greg and Carrie Bishop are “punished because they’re faithful and they’re trying to raise their children in line with their faith,” Reed said.

The lawsuit adds that several state lawmakers openly expressed a desire to use these criteria to cut out the schools. Democratic state Sen. Kesha Ram Hinsdale said ahead of the law’s passage that it was “important” that the 25% requirement be added because “otherwise we’re starting to send people back to religious schools.”

This ineligibility greatly affects the Bishops, Reed noted. Carrie Bishop has had to pick up an extra job to help cover the school’s tuition.

“It’s affecting them at home, not only in their pocketbook, but in their day-to-day life,” Reed said. “That has caused her to be not at home as much. So she’s not able to be there with her daughter, raising her daughter in the faith.”

The Bishops’ daughter planned to participate in a dual enrollment program this year, but participation is contingent on a student being enrolled in a public school or participating in the Town Tuitioning Program, according to ADF. Reed said the legal organization plans to file a motion soon that will ask the court to order the state to allow the daughter to receive tuition funding and participate in the dual enrollment program.

The family hopes for a decision as soon as possible but especially hopes to receive the benefits in time for the spring semester, he said.

Reed explained that Act 73 is part of Vermont’s decadeslong effort to exclude religious schools from the tuition program. Both the 2nd U.S. Circuit Court of Appeals and the U.S. Supreme Court have repeatedly ruled these exclusions violate First Amendment rights, the lawsuit notes. In 2022, the Supreme Court struck down a similar state tuition assistance program in Carson v. Makin, where the high court found that the state of Maine wrongly excluded religious families because of their religious exercise.

But in Vermont, instead of letting religious schools participate in the tuition program, state lawmakers soon sought to find a way around the Supreme Court’s ruling, according to the Bishops’ lawsuit. State Rep. Angela Arsenault said in 2024 that “the Supreme Court ruling in Carson v. Makin complicates things for us given our tuitioning system in Vermont. We need to figure out how to stop sending public dollars to religious schools.”

Vermont’s criteria might not include the word ‘religious,’ but it essentially is a gerrymander or workaround of these court rulings, Reed said. When the government opens up a program for all to access, it can’t exclude some because of their religious beliefs, he added.

“The bottom line here is that parents, not the government, get to decide how their children are educated,” Reed said. “They get to decide to raise their children in line with their faith if they want to, and they cannot be penalized for doing so. And that’s exactly what Vermont has done here.”

Legislators can’t pretend to use neutral rules while they are in reality targeting religious schools, said First Liberty Institute attorney Stephanie Taub. The legal organization was one of the representatives for the Christian school in Carson v. Makin. Maine is attempting a similar workaround to that landmark Supreme Court ruling, she noted.

“These sorts of school choice programs, tuition assistance programs, really help families that have limited means,” Taub said. “Vermont’s not alone in trying to come up with ways to get around the Supreme Court’s precedent in Carson, and we’re hopeful that the states will not be successful.”