- The Washington Times - Thursday, June 3, 2021

Conflicting federal district court rulings in two New England circuits could set up a Supreme Court showdown over just how far states can go in allocating taxpayer funds to religious schools in towns lacking public schools.

On Wednesday, a Second Circuit panel ruled in favor of parents who were excluded from Vermont’s “Town Tuition Program,” or TTP, which paid student’s fees at any independent school — including those in neighboring states New York and Maine—but drew the line at those religiously affiliated institutions.

More than 80 towns across the state offer the school choice option, which is paid for by taxpayer dollars.

Four parents of students enrolled at Rice Memorial High School, a Roman Catholic secondary school in Burlington, Vermont, along with the school and the local archdiocese, sued Vermont, alleging the state discriminated based on the school’s status. The Vermont case is known as A.H. v. French.

In 2020, the Supreme Court ruled such “status discrimination” illegal in a Montana case. In that case, the high court said a state tuition tax credit had to be offered to parents of religious school students.

Writing a concurring opinion in the Vermont case, Second Circuit Judge Steven Menashi, an appointee of President Trump and former associate White House counsel, said the Constitution’s Establishment Clause “does not require Vermont to avoid funding religious education through the TTP.” The Montana ruling, he added, found that while there is a “historic and substantial” state interest against paying to train clergy, “there is no comparable interest or tradition of states declining to aid religious education more broadly understood.”

The Second Circuit ruling clashes with an October 2020 ruling by the First Circuit in a 2018 in which several families sought similar support for children enrolled in parochial schools. There, in a case called Carson, Gillis and Nelson v. Hasson, the three-judge panel ruled the potential religious “use” of the tuition funds can be restricted by the state.

“This is the type of conflict you’d expect [the Supreme Court] to want to weigh in on and resolve,” said Michael Bindas, a senior attorney with the Institute for Justice, based in Arlington, Virginia. “We’ve had a quarter-century of conflicting decisions. … At some point, the Supreme Court has to step in and decide.”

Alex J. Luchenitser, associate legal director for District-based Americans United for the Separation of Church and State, said letting taxpayers use state-sponsored benefits to send their children to a religious school creates additional issues.

“We think that public funds should never be used to support religious activity or religious education,” Mr. Luchenitser said in a telephone interview. “Using public funds to support religion violates the freedom of conscience of taxpayers, the rights of taxpayers, to not support religious beliefs to which they don’t subscribe. Many of these religious schools [may also] discriminate based on various characteristics such as religion, sexual orientation [or] gender identity.”
Mr. Bindas asserted the patchwork of federal courts allowing or denying such uses violates the religious liberty rights of parents and their children.

“A student’s free exercise rights shouldn’t turn on the geographic area in which they reside,” he said. “Depending on what circuit you live in, you may or may not have a right to choose a religious education. [We] shouldn’t have a state of law where that right is protected in one circuit and not another.”

The Supreme Court is expected to consider taking on the Carson case on June 24. “We should know something by the end of the term,” Mr. Bindas said.

• Mark A. Kellner can be reached at mkellner@washingtontimes.com.

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