431 F.Supp.3d 432
D. Vt.2019Background
- Plaintiffs: Roman Catholic Diocese of Burlington and students (A.H., A.M., E.M., A.S.) and parents of students at Rice Memorial High School (RMHS), a private Catholic high school; they challenge Vermont's Dual Enrollment Program (DEP).
- DEP: allows eligible high‑school students to take up to two college courses at public expense; eligibility depends on residency, school enrollment status (public school, approved independent school designated by district, or home study), and personalized learning plan requirements.
- Alleged practice: Vermont designates secular private schools (but not religious private schools) as the public secondary school for tuitioning purposes, which plaintiffs say excludes religious‑school students from DEP even though DEP funds go to postsecondary institutions, not the high schools.
- Claims: free exercise (Count I) — DEP enforcement allegedly burdens religious exercise by excluding students/school due to religious status; equal protection (Count II) — unequal treatment of religious vs secular private schools and of private school vs home‑study students without a rational basis.
- Procedure: defendant moved to dismiss; plaintiffs sought leave to amend to substitute the Hester plaintiffs; court granted leave to amend and considered the motion to dismiss in light of the FAC.
- Disposition: court granted amendment; denied dismissal of free‑exercise claim (Count I) and the equal‑protection claim as to religious vs secular private schools; granted dismissal as to the equal‑protection claim comparing private school students to home‑study students.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Motion to amend / futility | Amend to substitute Hester plaintiffs and clarify facts; claims arise from same operative facts | Amendment is futile; defects in FAC | Grant amendment; court reviewed merits under FAC and proceeded to address dismissal arguments |
| Free‑exercise challenge to DEP eligibility | DEP practice excludes students of religious schools solely because of religious character, imposing a burden on religious exercise | DEP provision is neutral and generally applicable; eligibility depends on neutral, district‑based criteria | Denied dismissal: FAC plausibly alleges non‑neutral application and burden on religious exercise |
| Strict‑scrutiny applicability / narrow tailoring | State has no compelling interest and the exclusion is not narrowly tailored; Chittenden Town does not require exclusion here | State seeks to avoid Establishment Clause problems and promote postsecondary readiness/achievement gap | Denied dismissal: asserted interests (avoiding establishment beyond federal requirement, efficiency) are not convincing and tailoring is lacking at pleading stage |
| Equal protection — religious vs secular private schools; private vs home‑study | Excluding religious private schools but not secular ones is unequal; treating private school students differently from home‑study students is arbitrary | Distinctions are rational: integration of home‑study students into public programs and presumed differing need/financial status | Denied dismissal as to religious vs secular unequal‑treatment claim; granted in part as to private vs home‑study claim (that comparison survives rational‑basis review only for home‑study integration rationale) |
Key Cases Cited
- Chittenden Town Sch. Dist. v. Dep't of Educ., 738 A.2d 539 (Vt. 1999) (Vermont case addressing tuitioning to sectarian schools and concern about using public funds for religious worship)
- Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993) (facial neutrality and "real operation" tests for Free Exercise Clause scrutiny)
- Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (categorical exclusion from public benefit because of religious status triggers strict scrutiny)
- Sherbert v. Verner, 374 U.S. 398 (1963) (denial or conditioning of government benefits can infringe Free Exercise rights)
- Romer v. Evans, 517 U.S. 620 (1996) (unequal treatment of a protected class must meet heightened scrutiny when tied to a fundamental right)
- Wisconsin v. Yoder, 406 U.S. 205 (1972) (Free Exercise protections for religiously motivated conduct)
- Cent. Rabbinical Cong. of U.S. & Can. v. NYC Dep't of Health & Mental Hygiene, 763 F.3d 183 (2d Cir. 2014) (Free Exercise analysis distinguishing neutral, generally applicable laws)