A.H. v. French

985 F.3d 165

A.H., BY AND THROUGH her parents and natural guardians, James HESTER and Darlene Hester, other James Hester, other Darlene Hester; James Hester, individually; Darlene Hester, individually; Roman Catholic Diocese of Burlington, Vermont, Plaintiffs-Appellants,

E.M., by and through her parents and natural guardians, Christopher Messineo and Jill Messineo, other Christopher Messineo, other Jill Messineo; Christopher Messineo, individually; Jill Messineo, individually; A.M., by and through his parents and natural guardians, Christopher Messineo and Jill Messineo, other Christopher Messineo, other Jill Messineo; A.S., by and through her parents and natural guardians, Russell Senesac and Selena Senesac, other Russell Senesac, other Selena Senesac; Russel Senesac, individually; Selena Senesac, individually, Plaintiffs,

v.Daniel M. FRENCH, in his official capacity as Secretary of the Vermont Agency of Education, Defendant-Appellee,George B. Spaulding, in his official capacity as Chancellor of the Vermont State Colleges System, aka Jeb, Defendant.

No. 20-1772

August Term, 2020

United States Court of Appeals, Second Circuit.

Argued: October 13, 2020

Decided: January 15, 2021

Jacob P. Warner, Alliance Defending Freedom, Scottsdale, AZ (Ryan J. Tucker, Alliance Defending Freedom, Scottsdale, AZ; David A. Cortman, Alliance Defending Freedom, Lawrenceville, GA; Kristen K. Waggoner, John J. Bursch, Alliance Defending Freedom, Washington, DC; Thomas E. McCormick, McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT, on the Brief), for Plaintiffs-Appellants.

John T. Alexander, Assistant Attorney General (Benjamin D. Battles, Solicitor General; Rachel E. Smith, Assistant Attorney General, on the brief), Office of the Attorney General, Montpelier, VT, for Defendant-Appellee.

Before: Walker and Menashi, Circuit Judges.^**

John M. Walker, Jr., Circuit Judge:

Plaintiff-Appellant A.H. is a senior at Rice Memorial High School, a ministry of the Roman Catholic Diocese of Burlington, Vermont. In August 2020, A.H. sought to participate in the Dual Enrollment Program administered by Vermont's Agency of Education. The program pays tuition for high school juniors and seniors to take up to two courses at approved Vermont colleges. To be eligible for the program, A.H. was required to demonstrate that her Rice tuition was "publicly funded." When she applied for public funding, however, her application was denied solely because of her school's religious status.

A.H., her parents, and the Diocese sued the Agency of Education, alleging that the program's "publicly funded" requirement violated their rights under the Free Exercise Clause of the First Amendment as applied. They also moved for a preliminary injunction requiring the agency to permit A.H. to access dual-enrollment benefits pending adjudication of their claims. The district court (Reiss, J .) denied the motion, finding that the Dual Enrollment Program's eligibility requirements are facially neutral and generally applicable, were not motivated by a discriminatory intent, and do not impose unconstitutional burdens on religious exercise. In the alternative, the district court held that any unconstitutional burden imposed on A.H. was caused by her local school district, not the agency.

For the reasons that follow, we conclude that the district court abused its discretion by denying the motion for a preliminary injunction, and therefore REVERSE.

BACKGROUND

The "publicly funded" requirement at issue in Vermont's Dual Enrollment Program (DEP) is governed in substance by restrictions on public funding imposed by Vermont's Town Tuition Program. Accordingly, we describe the statutory schemes that govern both government programs before presenting the facts that give rise to the claims in this case.¹

A. The DEP and Vermont's Town Tuition Program

The DEP provides public funding for eligible high school students to dual-enroll in up to two courses at approved Vermont colleges.² The program is designed to "expand high-quality educational experiences," "promote opportunities for Vermont students to achieve postsecondary readiness," and "increase the rates of secondary school completion and postsecondary continuation in Vermont."³ Vermont funds the DEP by paying tuition directly to approved colleges and universities, in amounts set by statute.⁴

Following the DEP's enactment in 2013, Vermont has made program funds available to high school juniors and seniors according to the following eligibility requirements. "A Vermont resident who has completed grade 10 but has not received a high school diploma is eligible to participate in the Program" if the student:

(i) is enrolled in:

(I) a Vermont public school, including a Vermont career technical center;

(II) a public school in another state or an approved independent school that is designated as the public secondary school for the student's district of residence; or (III) an approved⁵independent school in Vermont to which the student's district of residence pays publicly funded tuition on behalf of the student ;

(ii) is assigned to a public school through the High School Completion Program; or

(iii) is a home study student ....⁶

Accordingly, the DEP is principally a public school program. It is available to students who attend public high schools as well as home study students who are statutorily entitled to participate in public school programs.⁷ As emphasized above, a student enrolled in a private (i.e., "independent") high school may receive DEP benefits only if her local school district has "publicly funded" her education by paying tuition on her behalf.

For Vermont's private school students, the DEP's "publicly funded" requirement intersects with Vermont's Town Tuition Program, pursuant to which some Vermont school districts use public funds to pay for students to attend private high schools.⁸ As the Vermont Supreme Court has described it, the Town Tuition Program is quite simple: If a school district "provides elementary education, it is required to provide secondary education."⁹ While school districts have "a number of options in meeting this obligation," they principally do so in one of two ways: (1) by maintaining a public high school within the district, or (2) by using public funds to pay tuition to an "approved public or independent high school" within or outside the district, to be selected by the parents or guardians of the student.¹⁰

Most of Vermont's school districts, including those in Vermont's most populous towns and cities, meet their obligations under the Town Tuition Program by maintaining public high schools. We refer to these districts as "Non-Sending Districts." In Non-Sending Districts, the public high school is the only "publicly funded" education available; students who choose to attend private high schools are never "publicly funded," regardless of whether they attend secular or religious schools. Because their tuition is not "publicly funded," private school students who live in Non-Sending Districts are not eligible to participate in the DEP.

Some school districts that are smaller and less populous, however, decline to maintain their own public high schools; they instead use public funds to pay for their students to attend approved independent schools or public schools in other districts. We refer to these districts as "Sending Districts." In Sending Districts, students attending either secular private schools or public schools in other districts receive "publicly funded" tuition, and are therefore eligible to participate in the DEP. For students who choose to attend religious private schools, however, access to public funding—and thus DEP eligibility—is not always certain. This is because, in Sending Districts, the use of public funds to pay tuition to religious schools has invited scrutiny under the Compelled Support Clause of Vermont's Constitution.

B. Chittenden Town and the Compelled Support Clause of Vermont's Constitution

Nothing in the legislation establishing the Town Tuition Program prohibits Sending Districts from paying tuition to religious schools, but the Compelled Support Clause in Article 3 of Vermont's Constitution imposes limits. That clause provides, in pertinent part, that "no person ought to, or of right can be compelled to ... erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience."¹¹ In Chittenden Town School District v. Department of Education , the Vermont Supreme Court interpreted this clause to "prohibit[ ] compelled taxpayer support of religious worship," which includes "religious instruction."¹² Accordingly, a school district violates the Compelled Support Clause when it uses public funds to "reimburse[ ] tuition for a sectarian school under [ 16 V.S.A.] § 822 in the absence of adequate safeguards against the use of such funds for religious worship."¹³ The Chittenden Town School District, at the time, was a Sending District that declined to maintain its own public high school.¹⁴ Applying the rule it announced, the Court held Chittenden Town's tuition-payment policy "unconstitutional ... to the extent that it authorize[d] tuition reimbursement to sectarian schools without appropriate restrictions."¹⁵

Chittenden Town ’s call for "adequate safeguards" created uncertainty in Sending Districts. What safeguards are "adequate" under Chittenden Town ? Which government entity—the State or the district—should develop and apply them? But in the more than twenty years since Chittenden Town was decided, Vermont has neither amended the Town Tuition Program nor identified adequate safeguards to ensure that Sending Districts do not use public funds to support worship at religious schools. Moreover, since at least 2010, officials of the Vermont Agency of Education (AOE) have frequently stated that Sending Districts may not publicly fund tuition for students attending religious schools. A March 2010 AOE white paper, for example, states that Sending Districts...