A.H. v. French ( 2021 )

20-1772
A.H. v. French
In the
United States Court of Appeals
For the Second Circuit
________
AUGUST TERM, 2020
ARGUED: OCTOBER 13, 2020
DECIDED: JANUARY 15, 2021
No. 20-1772
A.H., by and 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,
Plaintiffs-Appellants,
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.
2 No. 20-1772
DANIEL M. FRENCH, in his official capacity as Secretary of the
Vermont Agency of Education,
Defendant-Appellee,
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 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 because of her
school’s religious status.
* The Clerk of Court is directed to amend the caption as set forth above.
Senior Circuit Judge Ralph K. Winter, originally a member of this panel, died on
**
December 8, 2020. This appeal has been decided by the two remaining members
of the panel, who are in agreement. See 2d Cir. IOP E(b).
3 No. 20-1772
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-
enrollment benefits pending adjudication of their claims. The district
court (Reiss, J.) denied the motion, finding that the Dual Enrollment
Program’s eligibility requirements are facially neutral and generally
applicable, were not motivated by a discriminatory intent, and do not
impose unconstitutional burdens on religious exercise. In the
alternative, the district court held that any unconstitutional burden
imposed on A.H. was caused by her local school district, not the
agency.
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,
4 No. 20-1772
McCormick, Fitzpatrick, Kasper & Burchard, P.C.,
Burlington, VT, on the Brief), for Plaintiffs-
Appellants.
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 because 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-
5 No. 20-1772
enrollment benefits pending adjudication of their claims. The district
court (Reiss, J.) denied the motion, finding that the Dual Enrollment
Program’s eligibility requirements are facially neutral and generally
applicable, were not motivated by a discriminatory intent, and do not
impose unconstitutional burdens on religious exercise. In the
alternative, the district court held that any unconstitutional burden
imposed on A.H. was caused by her local school district, not the
agency.
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 to the
claims in this case. 1
1 As we will explain further, we review the district court’s findings of historical
fact for clear error and we review the core constitutional facts de novo. See United
States v. Friday, 525 F.3d 938, 950 (10th Cir. 2008).
6 No. 20-1772
A. The DEP and Vermont’s Town Tuition Program
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
2 See 16 V.S.A. § 944.
3 Id. § 941(a)(1)–(3).
4 See id. § 944(f)–(g).
7 No. 20-1772
(III) an approved 5 independent school in Vermont to
which the student’s district of residence 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
5 “An independent school may operate and provide elementary education or
secondary education if it is either approved or recognized” by the Vermont State
Board of Education. Id. § 166(a). The State Board of Education “shall approve an
independent school” if it meets minimum educational and other requirements. Id.
§ 166(b). A school’s religious affiliation is not relevant to this determination, id.,
and Rice Memorial High School (Rice) is an “approved” independent school.
6 16 V.S.A. § 944(b)(1).
7 Vermont requires school districts to “integrate home study students” into their
local public schools “through enrollment in courses, participation in cocurricular
and extracurricular activities, and use of facilities.” Id. § 563(24).
8 See id. § 822(a).
8 No. 20-1772
is quite simple: If a school district “provides elementary education, it
is required to provide secondary education.” 9 While school districts
have “a number of options in meeting this obligation,” they
principally do so in one of two ways: (1) by maintaining a public high
school within the district, or (2) by using public funds to pay tuition
to an “approved public or independent high school” within or outside
the district, to be selected by the parents or guardians of the student. 10
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
9 Chittenden Town Sch. Dist. v. Dep’t of Educ., 738 A.2d 539, 544 (Vt. 1999).
10 Id. (internal quotation marks omitted); see also 16 V.S.A. § 822(a).
9 No. 20-1772
these districts as “Sending Districts.” In Sending Districts, students
attending either secular private schools or public schools in other
districts receive “publicly funded” tuition, and are therefore eligible
to participate in the DEP. For students who choose to attend religious
private schools, however, access to public funding—and thus DEP
eligibility—is not always certain. This is because, in Sending Districts,
the use of public funds to pay tuition to religious schools has invited
scrutiny under the Compelled Support Clause of Vermont’s
Constitution.
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
11 Vt. Const. ch. I, art. 3.
12 738 A.2d at 562–63.
10 No. 20-1772
school district violates the Compelled Support Clause when it uses
public funds to “reimburse[] tuition for a sectarian school under [16
V.S.A.] § 822 in the absence of adequate safeguards against the use of
such funds for religious worship.” 13 The Chittenden Town School
District, at the time, was a Sending District that declined to maintain
its own public high school. 14 Applying the rule it announced, the
Court held Chittenden Town’s tuition-payment policy
“unconstitutional . . . to the extent that it authorize[d] tuition
reimbursement to sectarian schools without appropriate
restrictions.” 15
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
13 Id. at 541–42. Although the Court determined that there was “no way to separate
religious instruction from religious worship,” it emphasized that compelled
support for a place of worship does not violate Vermont’s Constitution “unless the
compelled support is for the ‘worship’ itself.” Id. at 550, 562.
14 Id. at 544.
15 Id. at 563–64.
11 No. 20-1772
stated that Sending Districts may not publicly fund tuition for
students attending religious schools. A March 2010 AOE white paper,
for example, states that Sending Districts may pay tuition to
“approved independent schools that parents choose, within or
outside Vermont, not including religious schools.” 16 The same was
published in an AOE white paper dated December 2012, and similar
statements have been made as recently as December 2019.
Notwithstanding this guidance from the AOE, some Sending Districts
have over the past twenty years used public funds to pay tuition for
eighty students attending religious schools. The record does not
show, however, whether these Sending Districts have extended
funding in violation of Chittenden Town or pursuant to the presence of
safeguards.
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
16 J. App. at 364 (emphasis added).
12 No. 20-1772
independent[] [schools] who are publicly funded . . . which
unfortunately leaves Rice out.” 17 And, in December 2015, a DEP
coordinator stated that “[s]tudents at a Christian or parochial school
or privately funded students are not eligible for Dual Enrollment.” 18
If those students want to participate in the DEP, they “would need to
be unenrolled at the Christian/parochial school and be enrolled in a
publicly funded school.” 19
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 attend
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
17 Id. at 135.
18 Id. at 140.
19 Id.
13 No. 20-1772
teachers and staff provide faith-based academic instruction, including
instruction in Catholic doctrine. For these reasons, Rice has been a
good fit for A.H. and her parents.
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.
20J. App. at 347. In denying A.H.’s application, the district cited to school-choice
guidance published on EdChoice.org, which stated that, under Vermont’s Town
Tuition Program, “[t]he sending town pays tuition directly to the ‘receiving’
school, which can be any public or private, non-religious school in or outside
Vermont.” Id. (emphasis added by the district).
14 No. 20-1772
D. Prior Proceedings
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 participate 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
21 This interlocutory appeal concerns only claims by A.H., her parents, and the
Diocese.
22 Several plaintiffs who are not appellants here, including A.S., A.M., and E.M.,
are residents of Non-Sending Districts that maintain public high schools.
15 No. 20-1772
requirements are facially neutral and generally applicable, were not
motivated by discriminatory intent, and do not impose
unconstitutional burdens on religious exercise. In the alternative, the
district court held that any burden imposed on A.H. was imposed by
her local school district, not the AOE, because A.H. and her parents
declined to pursue an administrative appeal to the AOE. Appellants
timely appealed.
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.
23140 S. Ct. 2246 (2020)
24Appellants also argue that the DEP’s eligibility requirements violate their equal
protection rights under the Fourteenth Amendment as applied. Because we hold
16 No. 20-1772
I. Standard of Review
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
that a preliminary injunction should issue based on Appellants’ First Amendment
claim, we need not address their equal protection argument on this appeal.
25 Libertarian Party of Conn. v. Lamont, 977 F.3d 173, 176 (2d Cir. 2020).
26 Klipsch Grp., Inc. v. ePRO E-Commerce Ltd., 880 F.3d 620, 627 (2d Cir. 2018)
(quoting EEOC v. Karenkim, Inc., 698 F.3d 92, 99–100 (2d Cir. 2012)).
27 Bronx Household of Faith v. Bd. of Edu. of City of N.Y., 331 F.3d 342, 348 (2d Cir.
2003) (quoting Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 499 (1984)).
28 New Life Baptist Church Acad. v. Town of E. Longmeadow, 885 F.2d 940, 941–42 (1st
Cir. 1989) (Breyer, J.).
17 No. 20-1772
right and a finding of fact are so intermingled as to make it necessary,
in order to pass upon the Federal question, to analyze the facts.” 29
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
29 Hurley v. Irish-American Gay, Lesbian & Bisexual Grp. of Boston, 515 U.S. 557, 567
(1995); see also ACLU of Fla., Inc. v. Miami-Date Cnty. Sch. Bd., 557 F.3d 1177, 1204
(11th Cir. 2009) (applying de novo review where “the Board’s motive is the
ultimate fact upon which the resolution of the constitutional question depends”).
While the requirement of independent appellate review requires us to scrutinize
the factual record, it “does not limit our deference to a trial court on matters of
witness credibility.” Hurley, 515 U.S. at 567.
30 See United States v. Friday, 525 F.3d 938, 950 (10th Cir. 2008) (collecting cases);
United States v. Israel, 317 F.3d 768, 770 (7th Cir. 2003); Tenafly Eruv Ass’n, Inc. v.
Borough of Tenafly, 309 F.3d 144, 156–57 (3d Cir. 2002); New Life Baptist Church, 885
F.2d at 941–42.
31 U.S. Bank Nat’l Ass’n ex rel. CWCapital Asset Mgmt. LLC v. Vill. at Lakeridge, LLC,
138 S. Ct. 960, 967 & n.4 (2018) (explaining that “the role of appellate courts ‘in
marking out the limits of a standard through the process of case-by-case
adjudication’ favors de novo review,” even when the analysis involves “plunging
into a factual record” (quoting Bose, 466 U.S. at 503) (alteration omitted)).
32 Friday, 525 F.3d at 950 (quoting Bose, 466 U.S. at 503–04).
18 No. 20-1772
constitutional facts de novo. We review other historical facts,
including “the who, what, where, when, and how of the controversy,”
for clear error. 33
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 to 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
33 See Bloedorn v. Grube, 631 F.3d 1218, 1229 (11th Cir. 2011).
34 Winter v. Nat’l Res. Def. Council, Inc., 555 U.S. 7, 24 (2008).
35 Yang v. Kosinski, 960 F.3d 119, 127 (2d Cir. 2020) (quoting Friends of the E. Hampton
Airport, Inc. v. Town of E. Hampton, 841 F.3d 133, 143 (2d Cir. 2016)).
36 Id. (alteration omitted) (quoting Winter, 555 U.S. at 20).
37 See Int’l Dairy Foods Ass’n v. Amestoy, 92 F.3d 67, 71 (2d Cir. 1996); see also Agudath
Israel of Am. v. Cuomo, No. 20-3572, 2020 WL 7691715, at *10 (2d Cir. Dec. 28, 2020)
(“Religious adherents are not required to establish irreparable harm independent
of showing a Free Exercise Clause violation . . . .”).
19 No. 20-1772
success on the merits is therefore “the dominant, if not the dispositive,
factor.” 38
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
38 N.Y. Progress & Prot. PAC v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013).
39 Yang, 960 F.3d at 127 (emphases in original) (quoting Mastrovincenzo v. City of
New York, 435 F.3d 78, 89 (2d Cir. 2006); see also Cacchillo v. Insmed, Inc., 638 F.3d
401, 406 (2d Cir. 2011) (“[A] mandatory preliminary injunction . . . alters the status
quo by commanding some positive act . . . .” (quoting Citigroup Glob. Mkts., Inc. v.
VCG Special Opportunities Master Fund Ltd., 598 F.3d 30, 35 n.4 (2d Cir. 2010))). As
the district court explained and the parties have acknowledged, the standard is
also higher “where the injunction being sought ‘will provide the movant with
substantially all the relief sought and that relief cannot be undone even if the
defendant prevails at a trial on the merits.’” Yang, 960 F.3d at 127–28 (quoting New
York ex. rel. Schneiderman v. Actavis PLC, 787 F.3d 638, 650 (2d Cir. 2015)). Because
Appellants request a mandatory injunction, we need not address this alternative
basis for imposing the higher legal standard.
40 Yang, 960 F.3d at 128 (first quoting Doe v. New York Univ., 666 F.2d 761, 773 (2d
Cir. 1981), and then quoting Mastrovincenzo, 435 F.3d at 89).
20 No. 20-1772
last actual, peaceable uncontested status which preceded the pending
controversy.’” 41 Here, Appellants acknowledge that “no religious
schools or students in them” have participated in the DEP since the
program was enacted in 2013. 42 A.H. sought and was denied dual-
enrollment funds more than five years after Vermont established the
program, and the State continues to deny eligibility to non-“publicly
funded” students. Notwithstanding the recent nature of this dispute,
Appellants urge us to fix the status quo at a time before the DEP was
enacted, when they claim religious school students could access a
similar dual-enrollment benefit under a separate (and now expired)
State program. We decline to do so. Vermont has applied the DEP’s
eligibility requirements for the better part of a decade. Appellants’
requested injunction would alter this status quo by mandating A.H.’s
inclusion in a State program for which she is, and has always been,
statutorily ineligible. 43 Accordingly, the district court correctly
applied the higher legal standard for a mandatory injunction.
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,
41 N. Am. Soccer League, LLC v. U.S. Soccer Fed’n, Inc., 883 F.3d 32, 37 (2d Cir. 2018)
(quoting Mastrio v. Sebelius, 768 F.3d 116, 120 (2d Cir. 2014) (per curiam)).
42 Pls.-Appellants’ Br. at 36 (emphasis omitted).
43 This posture is therefore distinguishable from a “benefits-termination” case,
where the “status quo is one in which the plaintiff continues receiving previously
granted benefits.” See N. Am. Soccer League, 883 F.3d at 37.
21 No. 20-1772
or prohibiting the free exercise thereof.” 44 The Supreme Court has
recognized “a ‘play in the joints’ between what the Establishment
Clause permits and the Free Exercise Clause compels.” 45 Here, we
agree with the parties that religious school students could participate
in the DEP without violating the Establishment Clause. “[T]he
Establishment Clause is not offended when religious observers and
organizations benefit from neutral government programs.” 46 And
any Establishment Clause objections would be particularly
unfounded here, because Vermont funds the DEP by paying tuition
directly to Vermont colleges—not religious high schools. Even then,
DEP funds make their way to a particular college or university only
as a result of Vermont students or families “independently choosing”
where they wish to dual-enroll. 47 We therefore focus on whether the
DEP’s “publicly funded” requirement, as applied, violates A.H.’s
right to freely exercise her religious beliefs.
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
44 U.S. Const. amend. I.
45 Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017)
(quoting Locke v. Davey, 540 U.S. 712, 718 (2004)).
46 Espinoza v. Mont. Dep’t of Revenue, 140 S. Ct. 2246, 2254 (2020).
47 See id. at 2254; see also Zelman v. Simmons-Harris, 536 U.S. 639, 649–53 (2002)
(rejecting Establishment Clause challenge to state voucher program that made
tuition assistance available to parents to send their children to religious schools).
22 No. 20-1772
on the basis of religious status.’” 48 Applying these “basic
principle[s],” the Supreme Court has confirmed that “denying a
generally available benefit solely on account of religious identity
imposes a penalty on the free exercise of religion that can be justified
only by a state interest ‘of the highest order.’” 49
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
48 Espinoza, 140 S. Ct. at 2255 (quoting Trinity Lutheran, 137 S. Ct. at 2021); see also
Lyng v. Nw. Indian Cemetery Protective Ass’n, 485 U.S. 439, 449 (1988) (explaining
that the government “penalize[s] religious activity by denying any person an
equal share of the rights, benefits, and privileges enjoyed by other citizens”).
49 Trinity Lutheran, 137 S. Ct. at 2019 (quoting McDaniel v. Paty, 435 U.S. 618, 628
(1978) (plurality opinion)).
50 Id. at 2017.
51 Id. at 2017–18.
52 Id. at 2018.
23 No. 20-1772
On appeal, the Supreme Court held that Missouri’s restrictive
policy violated the church’s rights under the Free Exercise Clause.53
Although the State had not “criminalized the way Trinity Lutheran
worships or told the Church that it cannot subscribe to a certain view
of the Gospel,” the policy discriminated against the church “simply
because of what it is—a church.” 54 That status-based discrimination,
the Court explained, imposed a “penalty on the free exercise of
religion.” 55 In effect, the policy “put[] [the church] to a choice: It
[could] participate in an otherwise available benefit program or
remain a religious institution.” 56 Because a State “punishe[s]” free
exercise when it “condition[s] the availability of benefits upon a
recipient’s willingness to surrender his religiously impelled status,” 57
the Supreme Court held that this choice “trigger[ed] the most exacting
scrutiny,” which Missouri could not meet. 58
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
53 Id. at 2021–25.
54 Id. at 2022–23.
55 Id. at 2021.
56 Id. at 2021–22.
57 Id. at 2022 (alterations omitted) (quoting McDaniel, 435 U.S. at 626).
58 Id. at 2021.
59 140 S. Ct. at 2252.
24 No. 20-1772
Montana Legislature had enacted a scholarship program to benefit
students attending private schools. 60 Although the program
permitted scholarship funds to be used at either secular or religious
private schools, the Montana Supreme Court struck it down, holding
that the program violated the state constitution’s “guarantee to all
Montanans that their government will not use state funds to aid
religious schools.” 61 The Supreme Court reversed. Following the
lessons of Trinity Lutheran, the Supreme Court held that the “no-aid”
provision of Montana’s constitution “‘impose[d] special disabilities
on the basis of religious status’ and ‘condition[ed] the availability of
benefits upon a recipient’s willingness to surrender its religiously
impelled status.’” 62 The Montana Supreme Court’s application of the
provision could not survive strict scrutiny. 63
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
60 Id. at 2251.
61 Id. at 2253 (quoting Espinoza v. Mont. Dept. of Revenue, 393 Mont. 446, 467 (2018)).
62 Id. at 2256 (alteration omitted) (quoting Trinity Lutheran, 137 S. Ct. at 2021–22).
63 Id. at 2260–61.
64 Id. at 2255, 2257.
65 137 S. Ct. at 2024 n.3.
25 No. 20-1772
Because a “goal or effect” of the no-aid provision was to prevent state
funds from being used for “religious education,” Montana argued
that the case should instead be governed by Locke v. Davey. 66 In Locke,
the Supreme Court held that the State of Washington did not violate
the Free Exercise Clause when it prohibited a student from using
scholarship funds to pursue a degree in devotional theology. 67
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” state 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
66 540 U.S. 712 (2004); Espinoza, 140 S. Ct. at 2257.
67 540 U.S. at 719.
68 Espinoza, 140 S. Ct. at 2257 (quoting Locke, 540 U.S. at 721).
69 Id. at 2257 (quoting Locke, 540 U.S. at 725).
70 Id.26 No. 20-1772
hinged solely on religious status.” 71 The Court concluded that
“[s]tatus-based discrimination remains status based even if one of its
goals or effects is preventing religious organizations from putting aid
to religious uses.” 72
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
71 Id. at 2256.
72 Id.
73 See 16 V.S.A. § 944(b)(1); see also id. § 166(a).
74 J. App. at 347.
75 Trinity Lutheran, 137 S. Ct. at 2019.
27 No. 20-1772
whether to “participate in an otherwise available benefit program or
remain a religious institution.” 76 At the same time, the requirement
puts A.H.’s family to a choice “between sending their child[] to a
religious school or receiving such benefits.” 77 As the Supreme Court
explained in Trinity Lutheran, the denial of a generally available
benefit solely on account of religious identity “can be justified only by
a state interest ‘of the highest order.’” 78 The AOE has not identified
any compelling interest that could survive strict scrutiny.79 It has not
even argued that it could.
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
76 Id. at 2021–22.
77 Espinoza, 140 S. Ct. at 2257.
78 137 S. Ct. at 2019 (quoting McDaniel, 435 U.S. at 628).
79 While the AOE has not articulated any basis upon which it contends the DEP
survives strict scrutiny, we note that a State’s interest in “separating church and
State ‘more fiercely’ than the Federal Constitution” would not qualify as
compelling in the face of the infringement of free exercise here. See Espinoza, 140
S. Ct. at 2260 (citation omitted).
28 No. 20-1772
Exercise Clause.” 80 Third, it argues that it should not be held
responsible for any status-based discrimination that occurred here
because A.H. declined to pursue an administrative appeal. We
address each of these arguments in turn.
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
80 Def.-Appellee’s Br. at 29.
81 Trinity Lutheran, 137 S. Ct. at 2020.
82 See 508 U.S. 520, 535 (1993).
83 See id. at 535–36.
29 No. 20-1772
smaller number of religious school students in Sending Districts is
merely an “incidental” effect of an otherwise neutral law.84
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 § 944(b)(1)(A)(i)(III) is
directed at students in Sending Districts. The principal if not sole
purpose of that provision is to extend DEP benefits to students in
Sending Districts who, unlike students in Non-Sending Districts, may
not have access to a public school education. 85 When evaluating the
effect of a law, the Supreme Court has instructed us to “survey
meticulously the circumstances of governmental categories” created
by statute. 86 Consistent with that command, we assess the neutrality
of the law as applied to students in Sending Districts, who are plainly
the object of the provision in question.
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
84 Def.-Appellee’s Br. at 61.
85 Consider the impact of deleting § 944(b)(1)(A)(i)(III) from the DEP’s enacting
statute. While the alteration would eliminate eligibility for many students in
Sending Districts, it would have no impact on the current eligibility of students in
Non-Sending Districts. All private school students in Non-Sending Districts
would remain ineligible for the DEP—regardless of whether they attend secular
or religious schools—because the statute would still limit eligibility to students
“enrolled in . . . [a] public school.” See 16 V.S.A. § 944(b)(1)(A)(i)(I), (II).
86 Church of the Lukumi, 508 U.S. at 534 (quoting Walz v. Tax Comm’n of New York
City, 397 U.S. 664, 696 (1970) (Harlan, J., concurring)).
30 No. 20-1772
accident, and it should come as no surprise. When the Vermont
Supreme Court decided Chittenden Town in 1999, it created substantial
uncertainty as to whether Sending Districts could publicly fund
tuition at religious schools without running afoul of the Compelled
Support Clause of Vermont’s Constitution. Although the decision
permits public funding to religious schools if “adequate safeguards”
are present, 87 the State has never identified any adequate safeguards
or explained how they might apply. Instead, since at least 2010, the
AOE has simply stated that Sending Districts may not pay tuition to
“religious schools.” 88
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
87See Chittenden Town, 738 A.2d 539 at 541–42.
88See, e.g., J. App. at 364 (AOE White Paper dated March 2010 stating that Sending
Districts may pay tuition to “approved independent schools that parents choose,
within or outside Vermont, not including religious schools.” (emphasis added)); id.
at 367 (AOE White Paper dated December 2012 stating the same).
89 We presume that a state legislature “is knowledgeable about existing law
pertinent to the legislation it enacts.” See Goodyear Atomic Corp. v. Miller, 486 U.S.
174, 185 (1988).
31 No. 20-1772
occasions that the DEP is not available to religious school students.
As the AOE acknowledged in its briefing to the district court, “Section
944’s ‘publicly funded’ requirement has the effect of excluding
participation in the Dual Enrollment Program by . . . students [in
Sending Districts] . . . who choose to attend a religious independent
school and thus, by operation of the Chittenden Town decision, forfeit
publicly funded secondary education.” 90 While the AOE takes a more
nuanced view of Chittenden Town in this appeal, it is clear that in at
least some cases religious school students wishing to participate in
the DEP must “be unenrolled at the Christian/parochial school and be
enrolled in a publicly funded school.” 91
Most importantly 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
90 J. App. at 27.
91 Id. at 140.
92 Id. at 347.
93 See id. at 402, 405.
32 No. 20-1772
that the burden of the “public funding” requirement falls by design
on religious school students and almost no others. 94 We therefore
reject the AOE’s assertion that the DEP is religion-neutral as applied.
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 worship. 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
94 See Church of the Lukumi, 508 U.S. at 536.
95 Def.-Appellee’s Br. at 29.
96 Id.33 No. 20-1772
Vermont law” to consider safeguards, 97 it has not pointed to any
direct evidence showing that “adequate safeguards” (or, more
precisely, their absence) were considered here. 98 In light of this
record, we need not presume that the denial of public funding was
anything but status based. Even if the district was motivated by a
desire to prevent the use of public funds for religious worship, the
Supreme Court explained in Espinoza that “[s]tatus-based
discrimination remains status based even if one of its goals or effects
is preventing religious organizations from putting aid to religious
uses.” 99
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
97 Id. at 65.
98 The concurring opinion relies on two documents in the record suggesting that,
in 2000 and 2015, the AOE may have implemented adequate safeguards through
a “pervasively sectarian” test. See J. App. at 370–73. Based on this evidence, the
concurring opinion first infers that A.H.’s school district may have applied a
similar test and then concludes that any such test would violate the First
Amendment. In the view of solely the author of this opinion, there is not an
adequate basis for drawing that inference and reaching the constitutionality of the
“adequate safeguards” framework. The school district’s email denying public
funding does not mention adequate safeguards or apply any “pervasively
sectarian” criteria. Id. at 347. Instead, it states that “Rice is a religious school” and,
citing guidance from EdChoice.org, emphasizes that public tuition may be paid
only to a “non-religious school.” Id. (emphasis in original). Even if A.H.’s district
had applied an “adequate safeguards” test, that test would appear to have no place
in the DEP, which finances dual-enrollment by paying tuition directly to approved
Vermont colleges—bypassing the religious high schools at issue here. See infra at
34.
99 Espinoza, 140 S. Ct. at 2256.
34 No. 20-1772
applied, constitute a use-based restriction that survives First
Amendment scrutiny. 100 We note, however, that even if an “adequate
safeguards” test could be constitutionally applied in the context of the
Town Tuition Program, 101 that may not mean that the restriction
could be constitutionally applied to the DEP. The Vermont Supreme
Court imposed the “adequate safeguards” test to prevent State funds
from supporting worship at religious schools. 102 Public funds
allocated to the DEP, however, never go to religious high schools; the
State finances dual-enrollment by paying tuition directly to approved
Vermont colleges. 103 In the context of the DEP, therefore, the
“adequate safeguards” test would appear to burden only religious
school students despite no risk of religious use.
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
100 See id. (rejecting Montana’s invitation to analyze the no-aid provision as a use-
based restriction under Locke v. Davey, 540 U.S. 712 (2004)). In Locke, the Supreme
Court upheld a state policy that prohibited the use of scholarship funds for
“religious instruction that will prepare students for the ministry.” 540 U.S. at 719.
There, the scholarship program went “a long way toward including religion in its
benefits” and “permit[ted] students to attend pervasively religious schools.” Id. at
724.
101 We note that in Carson as next friend of O.C. v. Makin, the First Circuit recently
held that a “non-sectarian” requirement in the State of Maine’s school tuition
program qualified as a use-based restriction that survives Espinoza. 979 F.3d 21,
45–46 (1st Cir. 2020). In this case, however, we agree with Appellants that we need
not decide the question.
102 Chittenden Town, 738 A.2d at 550, 562.
103 See 16 V.S.A. § 944(f).
35 No. 20-1772
A.H. declined to pursue an administrative appeal. 104 While the
district court relied on this fact as an alternative basis for denying the
motion, we disagree that it is dispositive here. For the reasons already
discussed, Appellants have made a substantial showing that, in
Sending Districts, the burden of the “public funding” requirement
falls on religious school students and no others. The AOE is
statutorily charged with administering the DEP, and it bears ultimate
responsibility for unconstitutionally applying the “publicly funded”
requirement in this case.
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
104See Def.-Appellee’s Br. at 17–20; see also Special App. at 6 § 10.
105Int’l Dairy Foods, 92 F.3d at 71; see also Agudath Israel, 2020 WL 7691715, at *11
(“[T]he deprivation of First Amendment rights is an irreparable harm . . . .”).
36 No. 20-1772
a preliminary injunction, A.H. will lose her last opportunity to
participate in the program when she graduates this Spring.
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
106 See City of Los Angeles v. Lyons, 461 U.S. 95, 112 (1983).
107 Def.-Appellee’s Br. at 69.
37 No. 20-1772
Amendment claim, and that the remaining factors merit preliminary
injunctive relief. Therefore, we REVERSE the judgment of the district
court and grant the motion for a preliminary injunction.
Notwithstanding A.H.’s inability to satisfy the “publicly funded”
requirement, Secretary French is ordered to permit A.H. to participate
in the DEP pending final adjudication of the merits of this case.
MENASHI, Circuit Judge, concurring:
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
thirty-three sending districts have—in at least eighty instances—
funded tuition payments for students to attend religious schools
under the Town Tuition Program (“TTP”). J. App’x 402, 405. Those
decisions would have allowed the funded students to qualify for the
DEP. Given this evidence, the AOE suggests, not all school districts
are categorically excluding religious schools from the TTP. Rather,
these districts must be applying some version of an “adequate
safeguards” analysis.
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.2
In a 2000 letter, the legal counsel of the Department of
Education—the predecessor agency to the AOE—rendered a
determination as to whether a particular school was “pervasively
sectarian such that it is ineligible to receive public funds.” Id. at 372.
The agency concluded that “the school is not so pervasively sectarian
in nature that it should be ineligible to receive public funds.” Id. The
agency reached that conclusion because “the school, in the main, is a
secular one” and “[t]here appears to be no intertwining of ‘secular
and sectarian aspects in its educational program.’” Id. (quoting
Chittenden Town, 738 A.2d at 542). The agency noted that the school’s
program does not contain “mandatory religious education,” the staff
includes “no religious personnel,” “classes and textbooks do not
contain religious content,” the “curriculum is exclusively secular,”
and members of the school’s Board of Trustees “are not necessarily
members of the Episcopal Church.” Id. at 372-73. Therefore, even
though “there are certain financial and other ties to the Episcopal
Church,” the agency determined that “the program is not a sectarian
one” and that “it would be permissible to have State funds expended
for placement of students at the school.” Id. at 373.
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
3
Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2021 (2017)). The exclusion of
certain types of religious institutions—pervasively sectarian
schools—is discrimination 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 officials. … 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.
4
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
1 See Wolman v. Walter, 433 U.S. 229, 250 (1977) (noting that “[i]n view of the
impossibility of separating the secular education function from the
sectarian,” state aid that “inevitably flows in part in support of the religious
role of the schools” is “unconstitutional”), overruled by Mitchell, 530 U.S. 793;
Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (“Even though earmarked for
secular purposes, ‘when it flows to an institution in which religion is so
pervasive that a substantial portion of its functions are subsumed in the
religious mission,’ state aid has the impermissible primary effect of
advancing religion.”), overruled by Mitchell, 530 U.S. 793.
2 See also Mitchell, 530 U.S. at 835 (plurality opinion) (“To the extent that
Meek and Wolman conflict with this holding, we overrule them.”); id. at 837(O’Connor, J., concurring) (“To the extent our decisions in Meek v. Pittenger
and Wolman v. Walter are inconsistent with the Court’s judgment today, I
agree that those decisions should be overruled.”) (citations omitted). The
Court’s plurality in Mitchell explained that “[i]f a program offers
permissible aid to the religious (including the pervasively sectarian), the
areligious, and the irreligious, it is a mystery which view of religion the
5
follows from the independent choices of parents and students in
sending districts to attend particular schools, there is even less
justification for such discrimination. 3
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 that 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
government has established, and thus a mystery what the constitutional
violation would be. The pervasively sectarian recipient has not received any
special favor,” and there is no reason to “reserve special hostility for those
who take their religion seriously, who think that their religion should affect
the whole of their lives, or who make the mistake of being effective in
transmitting their views to children.” Id. at 827-28 (plurality opinion).
3 See Zelman v. Simmons-Harris, 536 U.S. 639, 652 (2002) (“[W]here a
government aid program is neutral with respect to religion, and provides
assistance directly to a broad class of citizens who, in turn, direct
government aid to religious schools wholly as a result of their own genuine
and independent private choice, the program is not readily subject to
challenge under the Establishment Clause. … The incidental advancement
of a religious mission, or the perceived endorsement of a religious message,
is reasonably attributable to the individual recipient, not to the
government.”).
6
been clear: “Status-based discrimination remains status based even if
one of its goals or effects is preventing religious organizations from
putting aid to religious uses.” Id. 4
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
Appellee’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
4 Indeed, the state program the Supreme Court upheld in Locke “allowed
scholarships to be used at ‘pervasively religious schools’ that incorporated
religious instruction throughout their classes.” Espinoza, 140 S. Ct. at 2257
(quoting Locke, 540 U.S. at 724-25).
7
in or by a sectarian school, irrespective of the sectarian nature of those
activities.” Id. at 562 n.24 (majority opinion). The majority held that
“safeguards” are required to “prevent the use of public money to
fund religious education.” Id. at 562. The constitutional problem with
the TTP, according to the Vermont Supreme Court, is that “[s]chools
to which the tuition is paid by the district can use some or most of it
to fund the costs of religious education.” Id. at 562-63.
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
8
“funding religious education” in high schools, Chittenden Town, 738
A.2d at 562, would violate the Free Exercise Clause. Moreover, even
if the denial of funding under the TTP resulted from a use-based
restriction that was justified by a historic and substantial state
interest, the AOE would not be able to rely on that exclusion to justify
excluding A.H. from the DEP unless the same or similar interest
applied with respect to that program. See ante at 34.
***
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.
9