A college degree has served as an important benchmark for those chasing the American dream. Sadly, this milestone comes with an ever-ballooning price tag, which puts college further out of reach for working families. This is perhaps one reason why Vermont has one of the nation’s lowest rates of graduating high school seniors who go on to college despite having one of the highest high school graduation rates.
To help more students attend and complete college, the legislature created the Dual Enrollment Program in 2013. The program provides vouchers that allow high school juniors and seniors to take two, free, college courses before they graduate. And students at public schools, secular private schools, home school and even out-of-state high schools, are eligible to participate.
But despite Dual Enrollment’s admirable goals and broad reach, it has one terrible flaw: It systemically excludes students at religious high schools because of their schools’ religious nature. That’s because the Legislature which adopted the program tied its eligibility to Vermont’s discriminatory “town tuition” regime, which mandates towns without public high schools must pay tuition on behalf of their students to a school of the student’s choice. But the state—and school districts following its lead—rejects tuition requests if the chosen school is deemed too “sectarian.”
To end this discrimination, some students, their parents and the Catholic Diocese of Burlington have had to file a federal lawsuit challenging the Dual Enrollment Program’s constitutionality. They argue excluding them from Dual Enrollment because their school is religious violates their Free Exercise Rights under the First Amendment.
In its 2017 Trinity Lutheran Church v. Comer decision, the U.S. Supreme Court determined states cannot discriminate against students by excluding them from generally available public benefits simply because they attend a religious school. That kind of discrimination, the court said, is “odious to our Constitution … and cannot stand.” And in a newly issued opinion, the Supreme Court made clear that states cannot discriminate in scholarship programs that pay for school tuition.
But that is exactly what is happening in Vermont. The current lawsuit has revealed state officials have published guidance stating religious schools and their students are categorically ineligible for tuition. In fact, communications show when government officials consider students’ tuition applications, they evaluate whether schools have too much religious activity. Other government officials have told parents, high schools and participating colleges that students cannot participate in Dual Enrollment because of the religious nature of their schools. As a result, not a single religious high school participates in that program. It’s clear Vermont’s programs are unconstitutional.
Beyond its unconstitutionality, Vermont’s discrimination is bad policy. To start, excluding otherwise qualified students hinders Vermont’s stated goal of increasing college participation. And religious schools provide another excellent option for Vermont’s school choice system. In addition to teaching the typical core curriculum, religious schools provide their students valuable character formation. And these schools serve students from all socioeconomic backgrounds.
Many students attending Rice Memorial High School, for example, receive significant financial aid. What’s more, without any personal benefit, families who sacrifice to send their children to religious schools still support Vermont’s public-school system through their taxes. And local districts could actually save money by sending students to Rice, for example, instead of other private schools that charge more for tuition.
But despite these and other good reasons to stop discriminating and start allowing everyone to participate, the Legislature has failed to act. Over several years, it has had ample opportunity to fix this problem. And rather than work with the religious schools to keep their kids in the program, the Vermont Agency of Education instead actively kept students at religious schools from participating in Dual Enrollment.
Litigation unfortunately became necessary to bring fairness and equity to the Dual Enrollment Program. The case is now before the U.S. Court of Appeals for the 2nd Circuit, which will issue its decision in the coming months. Hopefully, the court will affirm religious freedom—something that, historically, our country has been famous for—means people of faith aren’t supposed to be singled-out for exclusion. And their children shouldn’t be denied the chance to get the same head-start on college as other students.
Paul Schmitt is legal counsel with Alliance Defending Freedom.