The Alliance Defending Freedom, a conservative Christian legal organization, filed the suit in January on behalf of two students at Rice Memorial High School, a Catholic school in South Burlington.
The suit contends that the state unconstitutionally bars students at religiously affiliated schools from participating in the dual enrollment program, which allows high school juniors and seniors to take up to two college courses at 19 eligible institutions at the state’s expense.
The state argues the program doesn’t specifically exclude students at religious schools.
In recent years, ADF, one of the best-funded and most powerful Christian legal groups in the country, has won a string of Supreme Court cases, including Trinity Lutheran Church v. Comer. That case set a key precedent at play in the Vermont dual enrollment case.
In a decision in that case, the court held that a Missouri state program violated the First Amendment when it denied a grant to a church-based school for playground resurfacing because of the school’s religious character. In court filings, ADF contends that “this is precisely the kind of program Vermont defends here.”
“Vermont discriminates against private religious high school students — including the Plaintiffs — by excluding them from a public benefit for which they otherwise qualify, based solely on their schools’ religious status,” attorneys for ADF argue.
The U.S. Department of Justice has also filed a statement of interest in the case in support of the plaintiffs, and attorneys from the department were present at the hearing Friday.
Attorneys for Vermont say eligibility criteria for the dual enrollment program never make mention of religion, or religious schools. The program excludes private school students that do not use a taxpayer-funded voucher to pay tuition.
In Vermont, districts that don’t operate a school for certain grades can instead opt to give students a voucher to attend the school of their choice, public or private. If the district operates a school, however, it can’t also offer vouchers. That means students attending secular private schools also don’t qualify for Vermont’s dual enrollment program.
“A religion-neutral and generally applicable law that imposes an incidental financial burden or indirect economic disadvantage on religious exercise by withholding a government educational benefit from both secular and religious private school students does not violate the Free Exercise Clause,” the state argues in court filings.
Since a landmark 1999 Vermont Supreme Court decision, Chittenden Town School District v. Department of Education, the state Constitution has been interpreted to bar public funds from being used to support religious education. No private religious schools currently receive vouchers through the state’s town tuitioning program.
But that doesn’t necessarily have to be the case, the state argued in filings and before Reiss on Friday. The 1999 case only prohibited districts from sending public money to private schools “in the absence of adequate safeguards against the use of such funds for religious worship.”
“There is no categorical, absolute bar,” Assistant Attorney General Jon Alexander told the judge. Nothing precludes local districts that tuition out their students, he said, from creating those safeguards and sending vouchers to private religious schools.
Christen Price, an attorney for ADF, replied that while the 1999 decision may have “opened the door” to religious schools one day receiving public funds, the state had “never walked through it.”
Reiss gave no indication of which way she would rule at the hearing’s conclusion. But she suggested she intended to let the parties know her decision sooner rather than later.
“It will not be six months from now, but it is a weighty matter, and I want to give it due consideration,” she said.
