by VDC staff

Mid Vermont Christian School in Quechee has asked a federal appeals court to overturn Vermont’s Act 73 exclusion of religious schools from the state’s tuition and other public education benefit programs, arguing the policy violates the First Amendment, according to a statement by Alliance Defending Freedom.

Attorneys with Alliance Defending Freedom filed an opening brief Wednesday, June 24 with the U.S. Court of Appeals for the 2nd Circuit on behalf of Mid Vermont Christian School and one of its families in the case, Mid Vermont Christian School v. Saunders.

The appeal challenges Act 73, a law enacted by the Vermont Legislature that the school says effectively bars religious schools from participating in the state’s Town Tuition Program, Dual Enrollment Program and Early College Program.

Vermont’s Town Tuition Program provides public funding for students living in school districts that do not operate their own public high schools, allowing them to attend approved public or private schools.

According to the lawsuit, the new law imposes eligibility requirements that exclude all approved religious independent schools while allowing most secular private schools to remain eligible.

“For decades, the Vermont Agency and Board of Education banned all religious schools from the Town Tuition Program and other public benefit programs,” the brief states. “Religious schools and families spent years seeking constitutional vindication in federal court, only to be banished again by the hostile Vermont legislature.”

Alliance Defending Freedom Senior Counsel David Cortman said the state continues to discriminate against religious schools despite a 2021 ruling by the 2nd Circuit that found Vermont’s previous exclusion of religious schools from the tuition program unconstitutional.

“Religious schools and the families they serve aren’t second-class citizens, yet Vermont continues to treat them as such by excluding them from a public benefit available to most non-religious private schools,” Cortman said. “All parents should be able to send their kids to schools that are the best fit for them, and the First Amendment protects parents’ right to choose religious schools.”

The appeal follows an earlier phase of the litigation involving Mid Vermont Christian School’s removal from statewide athletic competition after the school forfeited a girls’ basketball tournament game against a team with a transgender athlete. That portion of the lawsuit was settled earlier this year, with the Vermont Principals’ Association agreeing to pay $566,000 in damages and attorneys’ fees.

The current appeal focuses solely on the school’s eligibility for Vermont’s education benefit programs. The plaintiffs are asking the 2nd Circuit to reverse a lower court ruling and order a preliminary injunction allowing Mid Vermont Christian School and its students to participate in the tuition and related programs while the case proceeds.

The State of Vermont has not yet filed its response to the appeal.