A.H., by аnd through her parents and natural guardians, James Hester and Darlene Hester, other James Hester, other Darlene Hester; JAMES HESTER, individually; DARLENE HESTER, individually; ROMAN CATHOLIC DIOCESE OF BURLINGTON, VERMONT v. DANIEL M. FRENCH, in his official capacity as Secretary of the Vermont Agency of Education; GEORGE B. SPAULDING, in his official capacity as Chancellor of the Vermont State Colleges System, AKA Jeb
No. 20-1772
United States Court of Appeals For the Second Circuit
JANUARY 15, 2021
AUGUST TERM, 2020
ARGUED: OCTOBER 13, 2020
E.M., by and through her parents and natural guardians, Christopher Messineo and Jill Messineo, other Christopher Messineo, other Jill Messineo; CHRISTOPHER MESSINEO, individually; JILL MESSINEO, individually; A.M., by and through his parents and natural guardians, Christopher Messineo and Jill Messineo, other Christopher Messineo, other Jill Messineo; A.S., by and through her parents and natural guardians, Russell Senesac and Selena Senesac, other Russell Senesac, other Selena Senesac; RUSSEL SENESAC, individually; SELENA SENESAC, individually, Plaintiffs,
v.
GEORGE B. SPAULDING, in his official capacity as Chancellor of the Vermont State Colleges System, AKA Jeb, Defendant.*
Appeal from the United States District Court for the District of Vermont.
Before: WALKER and MENASHI, Circuit Judges.**
Plaintiff-Appellant A.H. is a senior at Rice Memorial High School, a ministry of the Roman Catholic Dioсese of Burlington, Vermont. In August 2020, A.H. sought to participate in the Dual Enrollment Program administered by Vermont‘s Agency of Education. The program pays tuition for high school juniors and seniors to take up to two courses at approved Vermont colleges. To be eligible for the program, A.H. was required to demonstrate that her Rice tuition was “publicly funded.” When she applied for public funding, however, her application was denied solely because of her school‘s religious status.
For the reasons that follow, we conclude that the district court abused its discretion by denying the motion for a preliminary injunction, and therefore REVERSE.
Judge Menashi concurs in a separate opinion.
JACOB P. WARNER, Alliance Defending Freedom, Scottsdale, AZ (Ryan J. Tucker, Alliance Defending Freedom, Scottsdale, AZ; David A. Cortman, Alliance Defending Freedom, Lawrenceville, GA; Kristen K. Waggoner, John J. Bursch, Alliance Defending Freedom, Washington, DC; Thomas E. McCormick,
JOHN T. ALEXANDER, Assistant Attorney General (Benjamin D. Battles, Solicitor General; Rachel E. Smith, Assistant Attorney General, on the brief), Office of the Attorney General, Montpelier, VT, for Defendant-Appellee.
JOHN M. WALKER, JR., Circuit Judge:
Plaintiff-Appellant A.H. is a senior at Rice Memorial High School, a ministry of the Roman Catholic Diocese of Burlington, Vermont. In August 2020, A.H. sought to participate in the Dual Enrollment Program administered by Vermont‘s Agency of Education. The program pays tuition for high school juniors and seniors to take up to two courses at approved Vermont colleges. To be eligible for the program, A.H. was required to demonstrate that her Rice tuition was “publicly funded.” When she applied for public funding, however, her application was denied solely becаuse of her school‘s religious status.
A.H., her parents, and the Diocese sued the Agency of Education, alleging that the program‘s “publicly funded” requirement violated their rights under the Free Exercise Clause of the First Amendment as applied. They also moved for a preliminary injunction requiring the agency to permit A.H. to access dual-
For the reasons that follow, we conclude that the district court abused its discretion by denying the motion for a preliminary injunction, and therefore REVERSE.
BACKGROUND
The “publicly funded” requirement at issue in Vermont‘s Dual Enrollment Program (DEP) is governed in substance by restrictions on public funding imposed by Vermont‘s Town Tuition Program. Accordingly, we describe the statutory schemes that govern both government programs before presenting the facts that give rise tо the claims in this case.1
The DEP provides public funding for eligible high school students to dual-enroll in up to two courses at approved Vermont colleges.2 The program is designed to “expand high-quality educational experiences,” “promote opportunities for Vermont students to achieve postsecondary readiness,” and “increase the rates of secondary school completion and postsecondary continuation in Vermont.”3 Vermont funds the DEP by paying tuition directly to approved colleges and universities, in amounts set by statute.4
Following the DEP‘s enactment in 2013, Vermont has made program funds available to high school juniors and seniors according to the following eligibility requirements. “A Vermont resident who has completed grade 10 but has not received a high school diploma is eligible to participate in the Program” if the student:
- (i) is enrolled in:
- (I) a Vermont public school, including a Vermont career technical center;
- (II) a public school in another state or an approved independent school that is designated as the public secondary school for the student‘s district of residence; or
(III) an approved5 independent school in Vermont to which the student‘s district of residenсe pays publicly funded tuition on behalf of the student;
- (ii) is assigned to a public school through the High School Completion Program; or
- (iii) is a home study student . . . .6
Accordingly, the DEP is principally a public school program. It is available to students who attend public high schools as well as home study students who are statutorily entitled to participate in public school programs.7 As emphasized above, a student enrolled in a private (i.e., “independent“) high school may receive DEP benefits only if her local school district has “publicly funded” her education by paying tuition on her behalf.
For Vermont‘s private school students, the DEP‘s “publicly funded” requirement intersects with Vermont‘s Town Tuition Program, pursuant to which some Vermont school districts use public funds to pay for students to attend private high schools.8 As the Vermont Supreme Court has described it, the Town Tuition Program
Most of Vermont‘s school districts, including those in Vermont‘s most populous towns and cities, meet their obligations under the Town Tuition Program by maintaining public high schools. We refer to these districts as “Non-Sending Districts.” In Non-Sending Districts, the public high school is the only “publicly funded” education available; students who choose to attend private high schools are never “publicly funded,” regardless of whether they attend secular or religious schools. Because their tuition is not “publicly funded,” private school students who live in Non-Sending Districts are not eligible to participate in the DEP.
Some school districts that are smaller and less populous, however, decline to maintain their own public high schools; they instead use public funds to pay for their students to attend approved independent schools or public schools in other districts. We refer to
B. Chittenden Town and the Compelled Support Clause of Vermont‘s Constitution
Nothing in the legislation establishing the Town Tuition Program prohibits Sending Districts from paying tuition to religious schools, but the Compelled Support Clause in Article 3 of Vermont‘s Constitution imposes limits. That clause provides, in pertinent part, that “no person ought to, or of right can be compelled to . . . erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience.”11 In Chittenden Town School District v. Department of Education, the Vermont Supreme Court interpreted this clause to “prohibit[] compelled taxpayer support of religious worship,” which includes “religious instruction.”12 Accordingly, a
Chittenden Town‘s call for “adequate safeguards” created uncertainty in Sending Districts. What safeguards are “adequate” under Chittenden Town? Which government entity—the State or the district—should develop and apply them? But in the more than twenty years since Chittenden Town was decided, Vermont has neither amended the Town Tuition Program nor identified adequate safeguards to ensure that Sending Districts do not use public funds to support worship at religious schools. Moreover, since at least 2010, officials of the Vermont Agency of Education (AOE) have frequently
Although Chittenden Town addressed only the Town Tuition Program and not the DEP, the DEP‘s “publicly funded” requirement effectively adopts any restrictions to public funding in the Town Tuition Program. As a result, some Vermont officials have issued guidance stating that students at religious schools are categorically ineligible for DEP benefits. In 2013, for example, the AOE‘s general counsel emailed the principal of Rice Memorial High School (Rice), a religious school within the Plaintiff-Appellant Diocese, stating that the DEP “limits dual enrollment funding to students in approved
In summary, the Chittenden Town decision created uncertainty as to whether Sending Districts could publicly fund tuition for students attending religious schools. Because students in Sending Districts must show that their tuition is “publicly funded” to qualify for the DEP, this uncertainty affects the administration of the DEP as well. While students in Sending Districts who choose to аttend secular private schools routinely obtain public funding that allows them to dual-enroll through the DEP, no religious schools nor any of their students have ever been approved to participate in the program.
C. Appellant A.H.‘s Attempt to Participate in the DEP
Appellant A.H. lives with her parents in South Hero, Vermont, a Sending District that does not maintain a public high school. A.H.‘s parents, who are Catholic, sought to send their daughter to a school that shares their faith. As a result, they enrolled A.H. at Rice. Rice‘s
As a high school senior, A.H. wished to dual-enroll in two science classes at the University of Vermont. A.H.‘s parents could not afford to pay for these classes in addition to paying Rice tuition, so A.H. sought to enroll through the DEP. Because the DEP requires students in Sending Districts to show that their tuition is “publicly funded,” A.H. timely applied to her local school district for public funding of her Rice tuition. The district denied A.H.‘s application, stating, “Unfortunately Rice is a religious school for which we do not pay tuition.”20 A.H. declined to pursue an administrative appeal to the AOE. As a result, A.H.‘s tuition at Rice is not “publicly funded” and she remains ineligible to participate in the DEP.
Around the same time that A.H. applied for public funding of her Rice tuition, Rice sought approval to participate in the DEP. The AOE denied Rice‘s application because it was untimely. Even if Rice‘s application had been timely, however, it is undisputed that the application would have been denied because none of Rice‘s students received “publicly funded” tuition.
Appellants A.H., her parents, and the Diocese, as well as several additional plaintiffs,21 brought this action in the District of Vermont, alleging that the DEP‘s “publicly funded” requirement discriminates against religious school students in violation of their free-exercise and equal-protection rights under the First and Fourteenth Amendments. Although Appellants initially claimed that the DEP‘s eligibility criteria were facially unconstitutional, including as applied in both Sending and Non-Sending Districts, they have since abandoned their facial challenge. They continue to challenge the DEP‘s eligibility criteria only as applied to religious school students in Sending Districts.22
On March 20, 2020, Appellants moved for a preliminary injunction requiring Daniel M. French, Secretary of the AOE, to allow A.H. and Rice to рarticipate in the DEP notwithstanding their present inability to satisfy the “publicly funded” requirement. Following a hearing, the district court denied the motion. The district court ruled that, even assuming A.H. could show irreparable harm, she failed to make a clear showing that she was likely to succeed on the merits. Specifically, the district court concluded that the DEP‘s eligibility
On June 26, 2020, Appellants moved for an emergency injunction ordering Secretary French to permit A.H. to participate in the DEP while this appeal was pending. Following the Supreme Court‘s June 30, 2020 decision in Espinoza v. Montana Department of Revenue,23 a motions panel of this Court granted Appellants’ motion and A.H. dual-enrolled at the University of Vermont.
DISCUSSION
On appeal, Appellants argue that the district court erred by denying their motion for a preliminary injunction. They contend that they will likely succeed in showing that, as applied, the DEP‘s “publicly funded” requirement violates their First Amendment right to freely exercise their religion, and that the equities favor preliminary injunctive relief.24 For the reasons that follow, we agree.
We review a district court‘s denial of a preliminary injunction for abuse of discretion.25 “A district court abuses its discretion if it (1) bases its decision on an error of law or uses the wrong legal standard; (2) bases its decision on a clearly erroneous factual finding; or (3) reaches a conclusion that, though not necessarily the product of a legal error or a clearly erroneous factual finding, cannot be located within the range of permissible decisions.”26
The parties dispute whether we should review the “core constitutional facts” de novo or simply for clear error. In the context of First Amendment claims under the Free Speech Clause, we have adhered to the Supreme Court‘s instruction to “‘make an independent examination of the whole record’ in order to make sure that ‘the judgment does not constitute a forbidden intrusion on the field of free expression.‘”27 This more searching review aims to ensure that we independently “determine the constitutional importance of the facts of the case,”28 particularly “where a conclusion of law as to a Federal
Several of our sister circuits have applied this standard of review to cases involving the Free Exercise Clause of the First Amendment,30 and we see no reason to take a different approach. The Supreme Court has generally favored de novo review in “the constitutional realm,”31 and its purpose in requiring an independent examination of the record in First Amendment free speech cases logically extends to review of claims under the same amendment‘s Free Exercise Clause. As the Tenth Circuit observed, “Freedom of religion, no less than freedom of speech, is a promise of the ‘First Amendment . . . essential to the common quest for truth and the vitality of society as a whole.‘”32 Accordingly, we review the core
II. Preliminary Injunction Standard
“A preliminary injunction is an extraordinary remedy never awarded as of right.”34 “Ordinarily, to obtain a preliminary injunction against governmental action taken pursuant tо a statute, the movant has to ‘demonstrate (1) irreparable harm absent injunctive relief, (2) a likelihood of success on the merits, and (3) public interest weighing in favor of granting the injunction.‘”35 “The movant also must show that the ‘balance of equities tips in his or her favor.‘”36 In cases alleging constitutional injury, a strong showing of a constitutional deprivation that results in noncompensable damages ordinarily warrants a finding of irreparable harm.37 Likelihood of
The standard for obtaining preliminary injunctive relief is higher, however, where the movant seeks “to modify the status quo by virtue of a ‘mandatory preliminary injunction’ (as opposed to seeking a ‘prohibitory preliminary injunction’ to maintain the status quo).”39 In this circumstance, the movant must also “make a ‘strong showing’ of irreparable harm” and “demonstrate a ‘clear or substantial likelihood of success on the merits.‘”40 The district court held that Appellants’ requested injunction was mandatory in nature and subject to this higher standard. Appellants argue that this ruling was in error, but we disagree.
“Because the proposed injunction‘s effect on the status quo drives the standard, we must ascertain the status quo—that is, ‘the
III. Likelihood of Success on the Merits
The Religion Clauses of the First Amendment provide that “Congress shall make no law respecting the establishment of religion,
The Free Exercise Clause, which applies to the states through the Fourteenth Amendment, “‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities
In Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court considered a free-exercise challenge to a Missouri grant program that provided subsidies for playground resurfacing at preschool and daycare centers. To comply with antiestablishment principles in Missouri‘s state constitution, the program disqualified any organization “owned or controlled by a church, sect, or other religious entity.”50 The petitioner, Trinity Lutheran Church, submitted an application to use grant funds for a rubber-resurfacing project at its preschool and daycare center.51 Although the church‘s application was highly ranked, the Missouri agency implementing the program determined that the church was “categorically ineligible” to receive a grant.52
The Supreme Court affirmed these principles in Espinoza v. Montana Department of Revenue, when it considered whether Montana violated the Free Exercise Clause by prohibiting the use of state scholarship funds to support sectarian schools.59 In 2015, the
Notably, Montana argued in Espinoza that Trinity Lutheran should not control because the no-aid provision constitutes a use-based restriction rather than status-based discrimination.64 In Trinity Lutheran, four of the six justices who joined the majority declined to address “religious uses of funding,” emphasizing that the case involved only “express discrimination based on religious identity.”65
The Supreme Court rejected Montana‘s argument for two reasons relevant here. First, it explained that the restriction in Locke was limited to “the ‘essentially religious endeavor’ of training a minister ‘to lead a congregation.‘”68 Unlike that “narrow restriction,” which was supported by an “historic and substantial” statе interest in not using public monies to fund the clergy, the no-aid provision of Montana‘s Constitution did not “zero in on any particular ‘essentially religious’ course of instruction at a religious school.”69 Instead, it barred “all aid to a religious school” based on nothing more than the school‘s religious character.70 Second, the Supreme Court emphasized that, even assuming Montana had legitimate concerns about scholarship funds being used for religious purposes, “those considerations were not the Montana Supreme Court‘s basis for applying the no-aid provision to exclude religious schools; that
After Trinity Lutheran and Espinoza, Appellants have a clear likelihood of success on the merits of their as-applied First Amendment claim. In Sending Districts, all high school juniors and seniors attending public schools and secular private schools meet the statutory requirements to be eligible for the DEP. Provided their secondary school of choice meets certain minimum requirements, their tuition is always “publicly funded.”73 But, as this case demonstrates, that is not true for students in Sending Districts who choose to attend religious schools. Here, A.H. was denied public funding—and thus eligibility for the DEP—solely because of her school‘s religious status. Indeed, in the district‘s email denying A.H.‘s application, it provided a single explanation: “Rice is a religious school[.]”74
In these circumstances, the State‘s reliance on the “publicly funded” requirement as a condition for DEP eligibility imposes a “penalty on the free exercise of religion.”75 It forces Rice to choose
Instead, the AOE advances three arguments. First, it argues that the DEP‘s “publicly funded” requirement is religion-neutral and generally applicable, such that any adverse impact on religious school students in Sending Districts should not be subject to strict scrutiny. Second, it argues that a preliminary injunction should not issue because “it is not clear whether” A.H.‘s school district, in denying her application for public funding, “engaged in the very sort of religious ‘status-based discrimination’ subject to strict scrutiny under the Free
First, the AOE argues that Trinity Lutheran and Espinoza should not govern this case because the DEP does not “single out the religious for disfavored treatment.”81 It argues that, under Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the district court properly found that the DEP‘s eligibility requirements are neutral and generally applicable.82 We disagree. Because “the effect of [the] law in its real operation” burdens only religious school students in Sending Districts and no others, we cannot conclude that the DEP is religion-neutral.83
As a threshold matter, the AOE asks us to assess the neutrality of the DEP‘s eligibility requirements by considering its effects in Non-Sending Districts, where most of Vermont‘s high school students reside. In these districts, the DEP‘s “publicly funded” requirement appears religion-neutral: it excludes all students attending private schools—whether secular or religious. This evidence, according to the AOE, indicates that the DEP‘s “potential exclusion” of a relatively
But, by looking principally to students who reside in Non-Sending Districts, the AOE elides a key feature of the DEP‘s statutory scheme: the “publicly funded” requirement in
In Sending Districts, like the one encompassing South Hero, Vermont, the burden of the DEP‘s “publicly funded” requirement is borne exclusively by students attending religious schools. This is no
The Vermont legislature enacted the DEP in 2013 against this backdrop and with knowledge of these constitutional constraints.89 By including the “publicly funded” requirement as a condition for eligibility in Sending Districts, the program necessarily adopted any restrictions that Chittenden Town imposed. Given that the AOE has for years interpreted Chittenden Town to state that Sending Districts may not publicly fund students attending religious schools, it is unremarkable that DEP administrators have stated on several
Most impоrtantly for our purposes, the record on this appeal plainly evidences religious discrimination. In the seven years since the DEP was enacted, no religious schools nor any of their students have ever been approved to participate. And when A.H. sought to dual-enroll, her school district declined to fund her high school tuition—and thus the DEP denied her application—simply because “Rice is a religious school.”92 Even observing that some religious school students have obtained public funding such that they might participate in the DEP,93 Appellants have made a substantial showing
Second, and in the alternative, the AOE argues that a preliminary injunction should not issue because, in denying A.H.‘s application for public funding, “it is not clear whether” her school district “engaged in the very sort of religious ‘status-based discrimination’ subject to strict scrutiny under the Free Exercise Clause.”95 The AOE suggests that A.H.‘s district may have properly applied Chittenden Town and denied public funding because “no adequate safeguards could be put in place” to prevent the district from supporting religious wоrship.96 If the district engaged in this analysis, the AOE insists that the district‘s denial of public funding would constitute a use-based restriction that cures any free-exercise problem caused by the DEP‘s reliance on the “publicly funded” requirement.
Here, however, the AOE‘s argument assumes a faulty premise. The record is clear—at least at this stage of the proceedings—that A.H.‘s school district denied her application for public funding solely based on her school‘s religious status. While the AOE insists that Sending Districts would not “ignor[e] or defy[] their obligation under
Because our decision “turns expressly on religious status and not religious use,” we express no view in this opinion as to whether Chittenden Town‘s requirement of “adequate safeguards” could, if
Finally, the AOE argues that it should not be held responsible for the status-based discrimination that occurred here because it does not directly control funding decisions by local school districts and
IV. Additional Preliminary Injunction Factors
Because we hold that Appellants have demonstrated a clear or substantial likelihood of success on the merits of their as-applied First Amendment claim, we have little difficulty concluding that the remaining factors favor a preliminary injunction. The denial of a constitutional right ordinarily warrants a finding of irreparable harm, even when the violation persists for “minimal periods” of time.105 In this case, the AOE‘s unconstitutional application of the “publicly funded” requirement is enduring and, for A.H., permanent. Absent
The balance of equities also favors injunctive relief. In addition to A.H.‘s strong interest in dual-enrolling at the University of Vermont before she leaves for college, the issuance of a preliminary injunction advances Rice‘s ability to attract talented students from Sending Districts who may also be interested in the DEP. Although we acknowledge that the State has an interest in administering its laws without interference by federal equitable power,106 that interest is diminished when the laws at issue likely impinge a federal constitutional right.
Finally, the public interest is well served by the correction of this constitutional harm. A.H. is entitled to join her peers at public schools and secular private schools by participating in the DEP. We reject the AOE‘s contention that extending this generally available governmental benefit to A.H. “will worsen, not ameliorate,” religious and secular communities’ perceptions of unequal treatment under the law.107
CONCLUSION
We conclude that Appellants have demonstrated a clear or substantial likelihood of success on the merits of their First
I join the opinion of the court holding that A.H. has a clear likelihood of prevailing on her claim that the Vermont Agency of Education (“AOE“) and Secretary of Education Daniel M. French violated her right to the free exercise of religion under the First Amendment. The AOE determined that neither Rice Memorial High School nor A.H. could participate in the state‘s publicly funded Dual Enrollment Program (“DEP“), and the record indicates that this disqualification was based on religious status—because “Rice is a religious school.” J. App‘x 347.
The AOE argues that A.H. was disqualified from the program not because “Rice is a religious school” but because—in the judgment of officials in the school district of South Hero, Vermont—Rice lacks the “adequate safeguards” for the use of public funds that the Vermont Supreme Court has required of religious institutions. See ante at 32; Chittenden Town Sch. Dist. v. Dep‘t of Educ., 738 A.2d 539, 541-42, 562-63 (Vt. 1999). The court‘s opinion correctly notes that, given the record at this stage, the AOE is unlikely to establish that South Hero officials considered anything other than the religious character of the school. Ante at 32-33. I write separately to note that, even if the AOE were to establish that the disqualification followed from an application of the “adequate safeguards” framework, the disqualification still would violate A.H.‘s rights under the First Amendment.
I
In the two decades since the Vermont Supreme Court decided Chittenden Town, neither the court nor any other state official has explained what “adequate safeguards” are required of religious schools. Yet, as the AOE points out, since Chittenden Town, at least
The AOE does not explain how that analysis works in practice. Two documents in the record, however, indicate that the AOE and French understand the “adequate safeguards” requirement to prohibit funding religious schools deemed to be “pervasively sectarian“—that is, schools that do not sufficiently distinguish between secular and religious activities. In a 2015 email, French—at the time a school district superintendent—explained to the general counsel of the AOE that he believed “a ‘pervasively sectarian’ school” was “not eligible for public tuition support.” J. App‘x 370. He wrote that he uses “subjective criteria to determine a school‘s sectarian nature: 1) is the school affiliated with a sect, 2) does the school require students to participate in sectarian activities, and 3) does the school require education in specific sectarian courses or other curriculum activities.” Id. French described his determination that a particular school was not eligible for the TTP because “[t]hey are affiliated with the Episcopal Church as demonstrated by their membership in the National Association of Episcopal Schools” and “[t]hey require students to participate in chapel services.” Id. The general counsel of the AOE responded that “I agree with your basic approach and conclusions.” Id.
II
If the AOE could establish that the South Hero school district implemented the TTP in this manner, the AOE‘s reliance on such a “pervasively sectarian” test to administer the DEP would still discriminate based on religious status in violation of the Free Exercise Clause. “The Free Exercise Clause, which applies to the States under the Fourteenth Amendment, ‘protects religious observers against unequal treatment’ and against ‘laws that impose special disabilities on the basis of religious status.‘” Espinoza v. Mont. Dep‘t of Revenue, 140 S. Ct. 2246, 2254 (2020) (quoting Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)). The exclusion of certain types of religious institutions—pervasively sectarian schools—is disсrimination on the basis of religious status. When a state conditions eligibility for public benefits “on the degree of religiosity of the institution and the extent to which that religiosity affects its operations, as defined by such things as the content of its curriculum and the religious composition of its governing board,” it discriminates on the basis of religious status because it “discriminates among religious institutions on the basis of the pervasiveness or intensity of their belief.” Colorado Christian Univ. v. Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008).
As a plurality of the Supreme Court has explained, “the application of the ‘pervasively sectarian’ factor” in dispensing public benefits “collides with our decisions that have prohibited governments from discriminating in the distribution of public benefits based upon religious status or sincerity.” Mitchell v. Helms, 530 U.S. 793, 828 (2000) (plurality opinion) (emphasis added); see also id. at 835 n.19 (noting that the application of such a test “to require exclusion of religious schools from [a public] program would raise serious questions under the Free Exercise Clause“). The Tenth Circuit has also recognized that “[b]y giving scholarship money to students who attend sectarian—but not ‘pervasively’ sectarian—[schools], [a state] necessarily and explicitly discriminates among religious institutions, extending scholarships to students at some religious institutions, but not those deemed too thoroughly ‘sectarian’ by governmental officiаls. This is discrimination ‘on the basis of religious views or religious status.‘” Colo. Christian Univ., 534 F.3d at 1258 (footnote omitted) (quoting Emp‘t Div. v. Smith, 494 U.S. 872, 877 (1990)); see also Univ. of Great Falls v. NLRB, 278 F.3d 1335, 1342 (D.C. Cir. 2002) (“[A]n exemption solely for ‘pervasively sectarian’ schools would itself raise First Amendment concerns—discriminating between kinds of religious schools.“).
This sort of “status-based discrimination is subject to ‘the strictest scrutiny.‘” Espinoza, 140 S. Ct. at 2257 (quoting Trinity Lutheran, 137 S. Ct. at 2022). Because the AOE has not identified a compelling interest that this discrimination would serve with respect to the DEP, see ante at 27, it cannot survive such scrutiny.
At one time, applicable precedent indicated that the Establishment Clause required discrimination against pervasively sectarian institutions.1 But that is not the law today: “[N]othing in the Establishment Clause requires the exclusion of pervasively sectarian schools from otherwise permissible aid programs, and other doctrines of this Court bar it.” Mitchell, 530 U.S. at 829.2 Because the aid here
To be sure, a state retains some limited discretion to avoid funding certain religious uses. See Trinity Lutheran, 137 S. Ct. at 2022-24 (construing Locke v. Davey, 540 U.S. 712 (2004)); see also infra Part III. But the “pervasively sectarian” test that the AOE and at least one school district have employed classifies schools based on their sectarian status and discriminates on thаt basis. This status-based discrimination cannot be justified because it might have “the goal or effect of ensuring that government aid does not end up being used for ‘sectarian education’ or ‘religious education.‘” Espinoza, 140 S. Ct. at 2256. A state may not deny aid to “schools that believe faith should permeate everything they do” because it worries the aid “could be used for religious ends” by those schools. Id. (internal quotation marks, alteration, and emphasis omitted). The Supreme Court has
Thus, even if the AOE could establish that the South Hero school district relied on the “adequate safeguards” framework to deny funding to Rice, the record indicates that school districts in Vermont apply this framework to exclude “pervasively sectarian” schools from otherwise available public funding. The AOE‘s reliance on such exclusion would still amount to unconstitutional status-based discrimination.
III
The AOE nevertheless suggests that school districts may apply the “adequate safeguards” framework to deny public funding for certain religious uses rather than on the basis of religious status. See Aрpellee‘s Br. 23-24. No evidence in the record supports that suggestion, though the Vermont Supreme Court‘s opinion in Chittenden Town does suggest a focus on a school‘s activities rather than its status. The concurring opinion in Chittenden Town argued that funding was impermissible when the receiving school was “a pervasively sectarian school at which religious worship regularly takes place in conjunction with educational activities.” Chittenden Town, 738 A.2d at 564 (Johnson, J., concurring). The majority indicated, however, that the Compelled Support Clause of the Vermont Constitution would not prohibit “any subsidy for activities
Even assuming that the Vermont Supreme Court‘s distinction between religious and secular education is a use-based restriction rather than the equivalent of the “pervasively sectarian” test—and assuming that the AOE could establish that South Hero applies such a use-based restriction—that would not change the outcome in this case. The Supreme Court‘s decision in Espinoza explains that a use-based religious exclusion must be justified by “a ‘historic and substantial’ state interest” or “tradition.” 140 S. Ct. at 2257-58 (quoting Locke, 540 U.S. at 725). And Espinoza clarifies that while there is “a ‘historic and substantial’ state interest in not funding the training of clergy,” there is no comparable interest or tradition of states declining to aid religious education broadly:
[N]o . . . ‘historic and substantial’ tradition supports [a state‘s] decision to disqualify religious schools from government aid. In the founding era and the early 19th century, governments provided financial support to private schools, including denominational ones. . . . Local governments provided grants to private schools, including religious ones, for the education of the poor. Even States with bans on government-supported clergy provided various forms of aid to religious schools.
Id. at 2258 (internal citations omitted). Thus, an “adequate safeguards” framework that featured use-based restrictions to avoid
* * *
In sum, A.H. has a clear likelihood of prevailing on her claim that her exclusion from the DEP violates her First Amendment right to the free exercise of religion. She is likely to prevail if Rice was denied public funding simply because it is religious, as the court‘s opinion emphasizes, or if her school district applied Chittenden Town‘s “adequate safeguards” framework in one of the ways suggested by the record or the AOE.