Second Circuit Rules Vermont Can’t Exclude Religious Schools From Tuition Program

A judge's gavel in a file photo. AlexStar/iStock

The U.S Court of Appeals for the 2nd Circuit has ruled that Vermont can’t exclude students attending religious schools from state-sponsored tuition programs, striking down the state’s long-standing prohibition on public funding for those institutions.

Vermont’s Town Tuition Program (TTP), one of the oldest of its kind in the United States, provides educational vouchers for students living in towns that don’t have public schools. The program allows a designated “tuition town” to directly pay tuition to the school of student’s choice, which can be public, secular private, or home school in or outside Vermont.

The case was brought last September by families who applied to their tuition towns for funding under the TTP, but their requests were denied because the schools they attend are deemed “too religious.” Their complaint alleged that Vermont Agency of Education had engaged in discrimination by denying religious schools access to TTP funding.

“The government is constitutionally required to treat religious people equally,” said Ryan Tucker, senior counsel at Alliance Defending Freedom, a conservative legal group representing the plaintiffs in the case. “As the U.S. Supreme Court has held, denying public benefits because of religion violates the First Amendment’s Free Exercise Clause because it unconstitutionally forces families to choose between exercising their religion or enjoying a publicly available benefit.”

In its opinion released Wednesday, the appeals court sided with the suing students and parents, saying that Vermont’s education officials had maintained their discriminatory policy even after last year’s Supreme Court ruling.

“Last June, the Court clarified that this rule does not allow a state to apply a state constitutional prohibition on aid to religion that would bar religious schools from public benefits solely because of the religious character of the schools,” the opinion reads. “The officials who administer Vermont’s Town Tuition Program nevertheless continued to discriminate against religious schools and students in violation of the First Amendment.”

“The Supreme Court has made clear that the prevailing practice in Vermont—maintaining a policy of excluding religious schools from the TTP—is unconstitutional,” the judges wrote.

In June 2020, the U.S. Supreme Court ruled that Montana can create a tax-credit scholarship program for private schools, even if it would mean that most money goes to religious schools.

“A State need not subsidize private education,” wrote Chief Justice John Roberts in the 5-4 decision. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”