985 F.3d 165
2d Cir.2021Background
- A.H., a Catholic senior at Rice Memorial High School (an approved religious independent school), sought to use Vermont’s Dual Enrollment Program (DEP) to take two college courses; DEP pays colleges directly but requires that a student’s high-school tuition be “publicly funded.”
- Vermont’s Town Tuition Program lets some small “Sending Districts” pay public tuition to approved independent schools; larger “Non-Sending Districts” maintain public high schools and never publicly fund private-school tuition.
- Chittenden Town (Vt. 1999) held Vermont’s Compelled Support Clause bars district tuition payments to sectarian schools absent “adequate safeguards,” creating long-standing uncertainty about whether Sending Districts may fund religious schools.
- A.H.’s Sending District denied public tuition for Rice solely because Rice is religious; that denial made her ineligible for the DEP. Rice’s attempt to get DEP approval was also denied or would have been denied because none of its students were publicly funded.
- Plaintiffs sued the Agency of Education (AOE) alleging as-applied Free Exercise and equal-protection violations; the district court denied a preliminary injunction, but the Second Circuit reversed and granted a preliminary injunction permitting A.H. to participate in the DEP pending final adjudication.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether DEP’s “publicly funded” requirement, as applied in Sending Districts, violates Free Exercise | The requirement excludes religious-school students based on religious status, imposing a penalty on free exercise | DEP is neutral/generally applicable; any exclusion flows from Chittenden Town and applies neutrally to all private-school students | Court: Likely success for plaintiff; the law operates as status-based discrimination in Sending Districts and triggers strict scrutiny |
| Whether the DEP is religion-neutral and generally applicable | The DEP’s effect falls exclusively on religious-school students in Sending Districts, so it is not neutral as applied | DEP treats secular private and public students the same; exclusion of religious students is incidental or driven by state constitutional constraints | Court: DEP not neutral in Sending Districts given AOE’s long-standing interpretation and administrative practice; neutrality rejected |
| Whether the local school district’s denial (and not the AOE) is the operative action that defeats relief | Denial was plainly status-based and attributable to the statutory scheme AOE administers; AOE bears responsibility for unconstitutional application | AOE says local district may have applied Chittenden Town’s “adequate safeguards” (a use-based restriction) and AOE lacks direct control; plaintiff failed to exhaust administrative appeal | Court: Record shows the district denied funding solely because Rice is religious; AOE administers DEP and bears responsibility; exhaustion isn’t dispositive at preliminary stage |
| Appropriateness of mandatory preliminary injunction ordering AOE to allow A.H. into DEP pending final adjudication | Constitutional deprivation constitutes irreparable harm; plaintiffs show a clear likelihood of success on the merits | Injunction would alter the status quo and is mandatory (higher standard); state interest in administering programs should weigh against relief | Court: Treated injunction as mandatory but found plaintiffs met higher standard (clear likelihood of success, irreparable harm, equities and public interest favor relief); injunction granted |
Key Cases Cited
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (status-based exclusion of a religious entity from a neutral public benefit violates the Free Exercise Clause)
- Espinoza v. Mont. Dep't of Revenue, 140 S. Ct. 2246 (2020) (state-court application of a no-aid rule excluding religious schools is impermissible status-based discrimination under Free Exercise)
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (framework for assessing neutrality and general applicability of laws affecting religion)
- Locke v. Davey, 540 U.S. 712 (2004) (upholding narrow, historic use-based exclusion for devotional-theology funding; distinguishes status- and use-based restrictions)
- Chittenden Town Sch. Dist. v. Dep't of Educ., 738 A.2d 539 (Vt. 1999) (Vermont Supreme Court: Compelled Support Clause limits district tuition payments to sectarian schools absent adequate safeguards)
- Mitchell v. Helms, 530 U.S. 793 (2000) (plurality opinion explaining that excluding ‘‘pervasively sectarian’’ institutions raises serious Free Exercise concerns)
- Zelman v. Simmons-Harris, 536 U.S. 639 (2002) (neutral aid programs that allocate benefits based on private choice do not necessarily violate the Establishment Clause)