Bench Memos

Law & the Courts

Espinoza Makes First Splash in Appellate Courts

The Supreme Court in Washington, D.C., January 21, 2020 (Will Dunham/Reuters)

One month ago, the U.S. Supreme Court issued its decision in Espinoza v. Montana Department of Revenue, holding that the Free Exercise Clause prohibits states from treating religious schools and their students less favorably than their secular counterparts simply because of their religious status. It was a weighty ruling, one that will send ripples through the appellate courts for years to come. And Wednesday, we witnessed the first such ripple in a significant win for families and religious freedom in Vermont.

Vermont offers a dual-enrollment program that allows high school juniors and seniors to enroll in two college courses. Vermont pays for the college tuition. The program is a valuable tool to help students get ahead, prepare for college, and broaden their educational options — unless you attend a religious high school, that is. While Vermont officials have allowed secular-private-school students and homeschool students to participate in the program, the state has prohibited students at religious high schools from doing so. In response, my colleagues and I at Alliance Defending Freedom filed a lawsuit, A.M. v French, on behalf of Catholic school students, parents, and the Roman Catholic Diocese of Burlington.

Opponents argue that the Establishment Clause and Article III of the Vermont Constitution — a so-called “Blaine Amendment” — forbid the Catholic school students from participating in the State’s dual-enrollment program. But under Espinoza, these arguments cannot stand.

On Wednesday, the U.S. Court of Appeals for the 2nd Circuit recognized this and granted the request of the students, parents, and diocese for an emergency injunction on appeal. In its brief order, the court stated, “In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue … [a]ppellants have a strong likelihood of success on the merits of their claims.”

The 2nd Circuit got it exactly right. In delivering the opinion of the court in Espinoza, Chief Justice John Roberts said he applied a “straightforward” standard: “when otherwise eligible recipients are disqualified from a public benefit solely because of their religious character, we must apply strict scrutiny” (internal quotations omitted).

The chief justice’s logic applies perfectly to the situation in A.M. v. French. The state is discriminating against students at religious schools not because of how they wish to use public monies, but because of who they are. For example, the state would allow students at non-religious high schools to use the dual-enrollment program to take college calculus courses, but it would prohibit students at religious schools from doing so. Status-based discrimination against religious people doesn’t get more “straightforward” than denying them a public benefit that has nothing to do with religion.

Most parents who send their children to religious schools are already relieving the government of significant public-schooling expense. Yet Vermont officials have responded by fighting these families in court to prevent the students from taking a mere two classes in the public Dual Enrollment Program. That is absurd. The 2nd Circuit was correct to grant an emergency injunction, and we should expect Espinoza to prompt similar actions from other appellate courts as well.

John Bursch is vice president of appellate advocacy and senior counsel for Alliance Defending Freedom. He served as Michigan’s solicitor general from 2011 to 2013.

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