Department of Justice Argues That Vermont’s Barring Parochial Student from College Course Program Violates Constitution

The Department of Justice today filed a brief in the U.S. Court of Appeals for the Second Circuit supporting a parochial high school student and her parents and who claim that Vermont discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution by excluding them from a state program paying tuition for high school students to take up to two college courses.

The Department of Justice today filed a brief in the U.S. Court of Appeals for the Second Circuit supporting a parochial high school student and her parents who claim that Vermont discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution by excluding them from a state program paying tuition for high school students to take up to two college courses.

“Ever since our patriotic ancestors declared our independence, rejected monarchy, and established the United States of America, our nation has supported and defended a very simple and important ideal, namely, that government may not discriminate against people of faith because of religion. Our Founding Fathers enshrined this principle in the First Amendment of the United States Constitution, and the United States today remains dedicated to the right of all people to practice their faith without suffering injustice at the hands of governments,” said Assistant Attorney General Eric Dreiband for the Civil Rights Division. “The First Amendment, common decency, and our shared humanity demand no less. The Department of Justice will continue to defend the right of all people to exercise religion according to the dictates of their faith and conscience.”

“Religious liberty is a fundamental and foundational right in this country,” said Christina E. Nolan, U.S. Attorney for Vermont. “We support the rights of students to both exercise their religion and participate fully in Vermont’s educational programs. Especially in light of the Supreme Court’s recent ruling on religious liberty and educational benefits, we believe this case advances the twin paramount goals of maximizing educational opportunities for young Vermonters and vigilantly guarding religious freedom.”

The appeal, A.M. v. French, involves a challenge to the exclusion of students attending religious high schools from Vermont’s “Dual Enrollment Program.” This program provides high school students the opportunity to take up to two college courses while still in high school, with tuition paid by the State. It is open to public school students, home school students, and students attending nonreligious private schools who do not have a public high school in their school district. The program, however, excludes those students without public high school in their district who choose to attend private religious schools. The student, A.M., attends a parochial school and would like to participate in the program and take courses at the University of Vermont, which she would be able to do were her school a secular private school.

A federal trial court on May 29, 2020, denied a preliminary injunction to the student and her parents, holding that they had not shown that they were likely to succeed on their claim under the Free Exercise Clause. The United States’ brief, however, argues that the District Court erred in not holding that the exclusion of the student from the Dual Enrollment Program was a likely constitutional violation, particularly in light of the Supreme Court’s decision on June 30, 2020, in Espinoza v. Montana Dept. of Revenue, barring discrimination based on religious status in a state scholarship program. The United States’ brief argues that “[t]he Supreme Court’s repeated holdings, including in Espinoza, that religious entities and their adherents cannot be excluded from or disadvantaged under public programs and benefits based on their religious character, make clear that [the student and her school’s]  disqualification from the Dual Enrollment Program is impermissible under the Free Exercise Clause.”

In July 2018, the Department of Justice announced the formation of the Religious Liberty Task Force. The Task Force brings together department components to coordinate their work on religious liberty litigation and policy, and to implement the Attorney General’s 2017 Religious Liberty Guidance.


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