Justice Department: Vermont’s Exclusion of Religious School Students from Tuition Program not Justified

The Department of Justice today filed a Statement of Interest in the U.S. District Court for the District of Vermont supporting parents and parochial high school students who claim that the State discriminated against them in violation of the Free Exercise Clause of the U.S. Constitution by barring them from a state program paying tuition for high school students to take up to two college courses.

The case, A.M. v. French, involves children attending religious schools who challenge their exclusion from Vermont’s “Dual Enrollment Program.” This program provides Vermont 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 Constitution’s First Amendment makes clear that students may not be excluded from education programs like the Dual Enrollment Program because of their religious status or their religious choices,” said Assistant Attorney General Eric Dreiband. “The Department of Justice is committed to ensuring that all persons may participate in benefit programs without discrimination based on their faith.”

“Religious liberty is a fundamental and foundational right in this country,” said Christina 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. We hope this case advances the twin paramount goals of maximizing educational opportunities for young Vermonters and vigilantly guarding religious freedom.”

The United States’ Statement of Interest emphasizes that excluding parochial school students from the Dual Enrollment Program would provide them with the same secular educational benefit—tuition at various local colleges—offered to other students. Excluding students from this secular benefit because they have chosen religious rather than nonreligious private schools is impermissible. The United States notes that two years ago, in Trinity Lutheran Church of Columbia v. Comer, the Supreme Court held that “denying a generally available benefit solely on account of religious identity imposes a penalty on the free exercise of religion,” and may only be justified by the most compelling governmental interests, which Vermont has not shown.

Today’s filing addresses issues set forth in the Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on Oct. 6, 2017 at the direction of President Trump’s May 4, 2017, Executive Order Promoting Free Speech and Religious Liberty. The Department of Justice Guidance states that “government may not target persons or individuals because of their religion” and observes that “constitutional protections for religious liberty are not conditioned upon the willingness of a religious person or organization to remain separate from civil society . . . . Individuals do not give up their religious-liberty protections by providing or receiving social services, education, or healthcare.”

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.