Bench Memos


Second Circuit Stops State from Discriminating against Parents’ Choice of Religious Schools

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A major federal court has ruled that Vermont was wrong to discriminate against families that chose to send their children to religious schools. This is great news for everyone who believes that parents should have a choice in their children’s education.

Vermont provides funds to students who live in areas with no public schools so they can attend a school of their choosing. When families decided to send their children to a religious private school, the state and their local school districts said they would not pay because the school was religious. The families, represented by Alliance Defending Freedom attorneys, sought relief in federal court, and the U.S. Court of Appeals for the Second Circuit unanimously agreed with the parents. It held that the state could not deny the parents’ choice just because the school was religious. The court concluded in A.H. v. French that the families “suffered status-based discrimination when the school district denied their TTP [Town Tuition Program] funding requests.”

Unfortunately, many states have discriminated against religious schools for decades, and they continue to do so. They do this by forbidding families from using their benefits at religious schools, even when the state allows parents to choose a school for their children, public or private.
These restrictions are usually found in what are called “Blaine amendments.” Years ago, many states adopted Blaine amendments to stop states from funding “sectarian” (a.k.a. religious) schools. This black hole in a parent’s choice is a serious setback for families that prefer their children to receive an education consistent with their religious views.

Most parents currently have little choice in education and are forced to send their children to a school near their home. Families that cannot afford to live near a good school might also be unable to afford the additional cost of a private school. Parents living in neighborhoods with failing public schools could have no way out. Instead of increasing opportunities for families and giving them more choices, Blaine amendments leave them without refuge and give them nowhere to turn.

Fortunately, the U.S. Supreme Court held last year that Montana’s Blaine amendment was unconstitutional because it violated the Free Exercise Clause by discriminating against religious organizations on the basis of their religious identity. Four years ago, the Supreme Court held in Trinity Lutheran Church of Columbia, Inc. v. Comer 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” (internal quotation marks omitted). And just last year, Chief Justice John Roberts relied on Trinity Lutheran when he wrote for the majority in Espinoza v. Montana Department of Revenue that “[a] state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

Last week’s circuit court decision has once again stopped government officials from discriminating against religious schools. In Vermont, the government officials had no good reason to deny a publicly available benefit to families just because they choose a religious school. The Second Circuit made clear that the Free Exercise Clause protects parents who were given the right to choose which school their child would attend. The protections of the Free Exercise Clause are not limited to thoughts and beliefs held in the privacy of one’s heart and mind.

In Vermont, the state decided to fund students’ education at a school chosen by their parents. Once the state decided to do so, it could not then discriminate against religious schools by telling the parents that they can choose any school except a religious one.

Trinity and Espinoza signaled the death knell for enforcement of Blaine amendments and similar discriminatory provisions. This means that states are now free to support parents who choose religious education for their children. States cannot deny parents funding that is otherwise available merely because they chose a religious education.

This latest decision is a gust of wind in the sails of families seeking refuge for better educational opportunities for their children. It provides hope for any family that wants to choose what school their children go to. And it confirms that discriminatory state provisions cannot stop parents from seeking support from their state to choose the right school for their children.

Greg Chafuen is legal counsel for the Center for Legislative Advocacy at Alliance Defending Freedom (@Alliance Defends).


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