A.H. v. Hester

555 F.Supp.3d 21

A.H., BY AND THROUGH her parents and natural guardians, James HESTER and Darlene Hester; James Hester, individually; Darlene Hester, individually; E.R., by and through her parents and natural guardians, Chad Ross and Angela Ross; Chad Ross, individually; Angela Ross, individually; A.F., by and through her parents and natural guardians, Daniel Foley and Juliane Foley; Daniel Foley, individually; Juliane Foley, individually; C.R., by and through her parents and natural guardians, Gilles Rainville and Elke Rainville; Gilles Rainville, individually; Elke Rainville, individually; and the Roman Catholic Diocese of Burlington, Vermont, Plaintiffs,

v.Daniel M. FRENCH, in his official capacity as Secretary of the Vermont Agency of Education; Michael Clark, in his official capacity as Grand Isle Supervisory Union Superintendent; the South Hero Board of School Directors; the Champlain Islands Unified Union School District Board of School Directors; James Tager, in his official Capacity as Franklin West Supervisory Union Superintendent; and the Georgia Board of School Directors, Defendants.

Case No. 2:20-cv-151

United States District Court, D. Vermont.

Signed August 16, 2021

David A. Cortman, Esq., Alliance Defense Fund, Lawrenceville, GA, Paul D. Schmitt, Esq., Pro Hac Vice, Alliance Defending Freedom, Washington, DC, Ryan J. Tucker, Esq., Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, Thomas E. McCormick, Esq., McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT, for Plaintiffs.

Jon T. Alexander, Esq., Heilmann, Ekman, Cooley & Gagnon, Inc., Civil Division, Burlington, VT, Rachel E. Smith, Esq., Vermont Attorney General's Office, Montpelier, VT, for Defendant Daniel M. French.

William F. Ellis, McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendants Michael Clark, South Hero Board of School Directors, Champlain Islands Unified Union School District Board of School Directors, James Tager, Georgia Board of School Directors.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART DEFENDANT FRENCH'S MOTION TO DISMISS

Christina Reiss, District Judge

Minor plaintiff A.H., her parents James and Darlene Hester, minor plaintiff E.R., her parents Chad and Angela Ross, minor plaintiff A.F., her parents Daniel and Juliane Foley, minor plaintiff C.R., her parents Gilles and Elke Rainville, and the Roman Catholic Diocese of Burlington, Vermont (the "Diocese of Burlington") (collectively, "Plaintiffs") bring this action against Defendants Daniel M. French ("Defendant French") in his official capacity as Secretary of the Vermont Agency of Education ("AOE"), Michael Clark in his official capacity as Superintendent of the Grand Isle Supervisory Union School District ("GISUSD"), the South Hero Board of School Directors, the Champlain Islands Unified Union School District ("CIUUSD") Board of Directors, James Tager in his official capacity as Franklin West Supervisory Union Superintendent, and the Georgia Board of School Directors (collectively, the "School Defendants").

In their First Amended Verified Complaint ("FAC"), Plaintiffs allege three claims: a violation of Plaintiffs’ Free Exercise of Religion rights by all Plaintiffs against all Defendants (Count I); a claim by the Diocese of Burlington that Defendants violated its First Amendment right to Freedom of Expression (Count II); and a claim by all Plaintiffs against all Defendants for violation of Plaintiffs’ constitutional right to Equal Protection (Count III). Plaintiffs seek declaratory and injunctive relief, as well as an award of compensatory damages, attorney's fees, and costs.

On November 27, 2020, Defendant French moved to dismiss the claims against him pursuant to Federal Rule of Civil Procedure 12(b)(1) for lack of standing. Plaintiffs opposed the motion on December 28, 2020, and Defendant French replied on January 11, 2021, at which time the court took the pending motion under advisement.

Plaintiffs are represented by David A. Cortman, Esq., Paul D. Schmitt, Esq., Ryan J. Tucker, Esq., and Thomas E. McCormick, Esq.; Defendant French is represented by Assistant Attorneys General Jon T. Alexander and Rachel E. Smith; and the School Defendants are represented by William F. Ellis, Esq.

I. Constitutional and Statutory Framework.

A. Vermont's Town Tuition Program.

Vermont's Constitution provides:

That all persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God; and that no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience[.]

Vt. Const. ch. I, art. 3 (emphasis supplied). The latter clause is commonly referred to as the "Compelled Support Clause."

The "Town Tuition Program" is a Vermont statutory program that provides tuition to students who live in towns without public schools so that they can obtain a publicly funded education. Under Vermont law,

(a) Each school district shall maintain one or more approved high schools in which high school education is provided for its resident students unless:

(1) the electorate authorizes the school board to close an existing high school and to provide for the high school education of its students by paying tuition to a public high school, an approved independent high school, or an independent school meeting education quality standards, to be selected by the parents or guardians of the student, within or outside the State; or

(2) the school district is organized to provide only elementary education for its students.

(b) For purposes of this section, a school district that is organized to provide kindergarten through grade 12 and maintains a program of education for only the first eight years of compulsory school attendance shall be obligated to pay tuition for its resident students for at least four additional years.

(c)(1) A school district may both maintain a high school and furnish high school education by paying tuition:

(A) to a public school as in the judgment of the school board may best serve the interests of the students; or

(B) to an approved independent school or an independent school meeting education quality standards if the school board judges that a student has unique educational needs that cannot be served within the district or at a nearby public school.

(2) The judgment of the [school] board shall be final in regard to the institution the students may attend at public cost.

16 V.S.A § 822.

B. The Role of the State Board of Education and School Boards.

The Vermont State Board of Education ("SBE") hears appeals of tuition decisions made by each school district:

A school district shall not pay the tuition of a student except to a public school, an approved independent school, an independent school meeting education quality standards, a tutorial program approved by the State Board, an approved education program, or an independent school in another state or country approved under the laws of that state or country, nor shall payment of tuition on behalf of a person be denied on account of age. Unless otherwise provided, a person who is aggrieved by a decision of a school board relating to eligibility for tuition payments, the amount of tuition payable, or the school he or she may attend, may appeal to the State Board and its decision shall be final.

16 V.S.A. § 828. The SBE also determines which schools are "approved independent schools":

To become an approved independent school, the school must: (1) offer elementary or secondary education; (2) provide a prescribed minimum course of study; and (3) "substantially" comply with Vermont Board of Education rules for approved independent schools. 16 V.S.A. § 166(b). The rules must at a minimum require "that the school has the resources required to meet its stated objectives, including financial capacity, faculty who are qualified by training and experience in the areas in which they are assigned, and physical facilities and special services that are in accordance with any state or federal law or regulation." Id.

Chittenden Town Sch. Dist. v. Dep't of Educ. (Chittenden Town) , 169 Vt. 310, 738 A.2d 539, 545 (1999) (footnote omitted).

C. Chittenden Town ’s Requirement of "Adequate Safeguards."

The Vermont Supreme Court has described the Town Tuition Program as "quite simple"; if a town school district "provides elementary education, it is required to provide secondary education." Id. at 544 (citing 16 V.S.A. § 822(a) ). A town "has a number of options in meeting this obligation. The two main ones are to maintain a public high school or to pay tuition ‘to an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state." Id. (footnote omitted) (quoting 16 V.S.A. § 822(a) - (b) ).

"Neither the [Town Tuition Program] statute nor the rules deal with sectarian education[ ]" and "neither the statute nor the rules deal with the religious part of the curriculum of a sectarian school." Id. at 545. There is thus "no limit on the quantity and nature of sectarian subjects[,]" nor is there any requirement that "sectarian education be separated from secular education. It is [therefore] entirely possible that the majority of the education in an approved independent school will be in religious tenets and doctrine." Id. (footnote omitted). This lack of restraints on a publicly funded religious education prompted the Vermont Supreme Court to "consider the constitutional implications of the [Town Tuition Program] authorizing school districts to provide high school education to their students by paying tuition for nonpublic schools selected by their parents." Id. at 541 (citing 16 V.S.A. §§ 822, 824 ).

Having concluded in a prior case that "the Establishment Clause of the United States Constitution was not an impediment to the reimbursement at...