A.H. v. French, Case No. 2:20-cv-151

• Decision Date: 07 January 2021
• Docket Number: Case No. 2:20-cv-151
• Parties: A.H., BY AND THROUGH her parents and natural guardians, James HESTER and Darlene Hester; James Hester, individually; Darlene Hester, individually; E.R., by and through her parents and natural guardians, Chad Ross and Angela Ross; Chad Ross, individually; Angela Ross, individually; A.F., by and through her parents and natural guardians, Daniel Foley and Juliane Foley; Daniel Foley, individually; Juliane Foley, individually; C.R., by and through her parents and natural guardians, Gilles Rainville and Elke Rainville; Gilles Rainville, individually; Elke Rainville, individually; and the Roman Catholic Diocese of Burlington, Vermont, Plaintiffs, v. Daniel M. FRENCH, in his official capacity as Secretary of the Vermont Agency of Education ; Michael Clark, in his official capacity as Grand Isle Supervisory Union Superintendent; the South Hero Board of School Directors; the Champlain Island Unified School District Board of School Directors; James Tager, in his official capacity as Franklin West Supervisory Union Superintendent; and the Georgia Board of School Directors, Defendants.
• Court: U.S. District Court — District of Vermont

511 F.Supp.3d 482

A.H., BY AND THROUGH her parents and natural guardians, James HESTER and Darlene Hester; James Hester, individually; Darlene Hester, individually; E.R., by and through her parents and natural guardians, Chad Ross and Angela Ross; Chad Ross, individually; Angela Ross, individually; A.F., by and through her parents and natural guardians, Daniel Foley and Juliane Foley; Daniel Foley, individually; Juliane Foley, individually; C.R., by and through her parents and natural guardians, Gilles Rainville and Elke Rainville; Gilles Rainville, individually; Elke Rainville, individually; and the Roman Catholic Diocese of Burlington, Vermont, Plaintiffs,

v.Daniel M. FRENCH, in his official capacity as Secretary of the Vermont Agency of Education ; Michael Clark, in his official capacity as Grand Isle Supervisory Union Superintendent; the South Hero Board of School Directors; the Champlain Island Unified School District Board of School Directors; James Tager, in his official capacity as Franklin West Supervisory Union Superintendent; and the Georgia Board of School Directors, Defendants.

Case No. 2:20-cv-151

United States District Court, D. Vermont.

Signed January 7, 2021

David A. Cortman, Esq., Alliance Defense Fund, Lawrenceville, GA, Paul D. Schmitt, Esq., Pro Hac Vice, Alliance Defending Freedom, Washington, DC, Ryan J. Tucker, Esq., Pro Hac Vice, Alliance Defending Freedom, Scottsdale, AZ, Thomas E. McCormick, Esq., McCormick, Fitzpatrick, Kasper & Burchard, P.C., Burlington, VT, for Plaintiffs.

Jon T. Alexander, Esq., Office of the Vermont Attorney General, Rachel E. Smith, Esq., Vermont Attorney General's Office Agency of Education, Montpelier, VT, for Defendant Daniel M. French.

William F. Ellis, McNeil, Leddy & Sheahan, P.C., Burlington, VT, for Defendants Michael Clark, South Hero Board of School Directors, Champlain Islands Unified Union School District Board of School Directors, James Tager, Georgia Board of School Directors.

OPINION AND ORDER GRANTING IN PART AND DENYING IN PART PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION

Christina Reiss, District Judge

Minor plaintiff A.H., her parents James and Darlene Hester, minor plaintiff E.R., her parents Chad and Angela Ross, minor plaintiff A.F., her parents Daniel and Juliane Foley, minor plaintiff C.R., her parents Gilles and Elke Rainville, and the Roman Catholic Diocese of Burlington, Vermont (the "Diocese of Burlington") (collectively, "Plaintiffs") bring this action against Defendants Daniel M. French ("Defendant French") in his official capacity as Secretary of the Vermont Agency of Education ("AOE"), Michael Clark in his official capacity as Superintendent of the Grand Isle Supervisory Union School District ("GISUSD"), the South Hero Board of School Directors, the Champlain Islands Unified Union School District ("CIUUSD") Board of Directors, James Tager in his official capacity as Franklin West Supervisory Union Superintendent, and the Georgia Board of School Directors (collectively, the "School Defendants").¹ In their First Amended Verified Complaint, Plaintiffs allege three claims: a violation of Plaintiffs’ Free Exercise of Religion rights by all Plaintiffs against all Defendants (Count I); a claim by the Diocese of Burlington that Defendants violated its First Amendment right to Freedom of Expression (Count II); and a claim by all Plaintiffs against all Defendants for violation of Plaintiffs’ constitutional right to Equal Protection (Count III). In their prayer for relief, Plaintiffs seek declaratory and injunctive relief, as well as an award of compensatory damages, attorney's fees, and costs.

In their motion for a preliminary injunction, Plaintiffs allege Defendants denied their applications for funds from the State of Vermont's statutory program (the "Town Tuition Program") solely because of the religious affiliation of Rice Memorial High School ("RMHS"). They ask the court:

to enjoin Defendants, Defendants’ officers, agents, employees, and all other persons acting in concert with them, from applying Vermont law, including the Vermont Constitution's Compelled Support Clause, Vt. Const. Ch. I, art. III—or any interpretation thereof—to deprive the Plaintiff families of access to town tuition benefits under Title 16 of the Vermont Statutes, and the Catholic Diocese of Burlington from receiving such benefits in violation of the First Amendment's Free Exercise Clause.

(Doc. 21 at 3.)

On December 9, 2020, Defendants opposed the motion, and on December 13, 2020, Plaintiffs replied. The court heard oral argument on December 14, 2020 and admitted as evidence the parties’ declarations and exhibits. Neither party sought to present testimony. Pursuant to Fed. R. Evid. 201, the School Defendants made an unopposed request for judicial notice of certain excerpts from the RMHS website. The court took judicial notice of the RMHS website and the 2019-2020 Course Viewbook in their entirety.

Defendant French agrees that neither Vermont's Constitution nor Chittenden Town School District v. Department of Education , 169 Vt. 310, 738 A.2d 539 (1999) precludes payments under the Town Tuition Program to religiously affiliated schools. He contends that he neither denied Plaintiffs’ tuition reimbursement requests nor had any role in the decision-making. Instead, pursuant to Vermont's statutory framework, he contends that decision was made solely by the School Defendants.

The School Defendants, in turn, argue that they followed the advice of legal counsel in denying reimbursement payments for RMHS. They assert that "[i]t appears the protected right these Plaintiffs seek to have vindicated is the right to a religious education at public expense." (Doc. 28 at 6.) They claim no such right exists. In the alternative, they contend that any injury Plaintiffs have suffered can be remedied by an award of damages because Plaintiffs continue to practice their religion.

Plaintiffs are represented by David A. Cortman, Esq., Paul D. Schmitt, Esq., Ryan J. Tucker, Esq., and Thomas E. McCormick, Esq. Defendant French is represented by Assistant Attorneys General Jon T. Alexander and Rachel E. Smith, and the remaining Defendants are represented by William F. Ellis, Esq.

I. Vermont's Constitution, the Town Tuition Program, and Chittenden Town and its Progeny.

Before rendering its findings of fact, the court examines the constitutional and statutory framework surrounding Plaintiffs’ claims.

Vermont's Constitution provides:

That all persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God; and that no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience[.]

Vt. Const. ch. I, art. 3 (emphasis supplied). The latter clause is commonly referred to as the "Compelled Support Clause."

Vermont statutes create a Town Tuition Program that provides tuition to students who live in towns without public schools so that those students can obtain a publicly funded education. Under Vermont law,

(1) A school district may both maintain a high school and furnish high school education by paying tuition:

(A) to a public school as in the judgment of the school board may best serve the interests of the students; or

(B) to an approved independent school or an independent school meeting education quality standards if the school board judges that a student has unique educational needs that cannot be served within the district or at a nearby public school.

(2) The judgment of the [school] board shall be final in regard to the institution the students may attend at public cost.

16 V.S.A § 822(c) (emphasis supplied).

The Vermont Board of Education determines which schools are "approved independent schools":

To become an approved independent school, the school must: (1) offer elementary or secondary education; (2) provide a prescribed minimum course of study; and (3) "substantially" comply with Vermont Board of Education rules for approved independent schools. 16 V.S.A, § 166(b). The rules must at a minimum require "that the school has the resources required to meet its stated objectives, including financial capacity, faculty who are qualified by training and experience in the areas in which they are assigned, and physical facilities and special services that are in accordance with any state or federal law or regulation." Id.

Chittenden Town , 738 A.2d at 545.

The Vermont Supreme Court has described the Town Tuition Program as "quite simple." Id. at 544. If a town school district "provides elementary education, it is required to provide secondary education." Id. (citing 16 V.S.A. § 822(a) ). A town "has a number of options in meeting this obligation. The two main ones are to maintain a public high school or to pay tuition ‘to an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state.’ " Id. (quoting 16 V.S.A. § 822(a) - (b) ). "Neither the [Town Tuition Program] nor the rules deal with sectarian education[ ]" and "neither the statute nor the rules deal with the religious part of the curriculum of a sectarian school." Id. at 545. There is thus "no limit on the quantity and nature of sectarian subjects[ ]" nor is there any requirement that "sectarian education be separated from secular education. It is [therefore] entirely possible that the majority of the education in an approved independent school will be in religious tenets and doctrine." Id.

In Chittenden Town , the Vermont Supreme Court "consider[ed] the constitutional implications of the [Town Tuition Program] authorizing school districts to provide high school education to their students by paying tuition for nonpublic schools selected by their parents." Chittenden Town , 738 A.2d at 541 (citing 16 V.S.A. §§ 822, 824). Having...