In Vermont, residents of towns without public schools for all grade levels are eligible to have their tuition at another private school funded by the state, through the Vermont Town Tuition Program. The town pays tuition for students who attend eligible schools in lieu of operating a public school.
Previously, students who opted to attend religiously-affiliated schools were not eligible for tuition assistance, while students at secular private schools and public schools in nearby towns were eligible. In February 2021, the Second Circuit amended a January-issued preliminary injunction which added that towns could not enforce the policy against religious school students.
Originally, the Jan. 7 preliminary injunction solely “gave the school districts time to figure out how they wanted to comply with the Vermont constitution,” ADF told CNA.
In June, a three-judge panel of the court issued a ruling explaining their February order, citing the Supreme Court’s 2017 ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer; in that decision, the court ruled that a Missouri no-aid clause could not be used to block a church-owned playground from accessing a public benefit it would otherwise be eligible for, simply on account of its religious status.
In June 2020, the Supreme Court further ruled in Espinoza v. Montana Department of Revenue that Montana could not block public funding of religious institutions or causes, while allowing similar secular organizations access.
Citing Espinoza, Judge Steven Menashi of the Second Circuit court wrote that the Supreme Court had “emphasized that ‘[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses’ and that a state cannot justify discrimination against religious schools and students by invoking an ‘interest in separating church and State more fiercely than the Federal Constitution.’”
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