Religious School Students’ Suit Challenging Vermont Program Gains Justice Department Support

The U.S. Department of Justice has filed a statement of interest in a case pending in the
U.S. District Court for the District of Vermont in support of parents and parochial high school
students who claim that Vermont has discriminated against them in violation of the Free Exercise
Clause of the First Amendment to the U.S. Constitution.

The plaintiffs in the case, A.M. v. French, assert that their Free Exercise rights have been
violated because the state does not permit them to participate in a state program that pays tuition
for high school students to take up to two college courses. 

Vermont’s Dual Enrollment Program offers Vermont high school students the
opportunity to take up to two college courses while still in high school, with tuition paid by the
state. The program is open to public school students, home school students, and students
attending nonreligious private schools who do not have a public high school in their school
district. The plaintiffs assert, however, that the program excludes students without a public high
school in their district who choose to attend private religious schools, in violation of the First

“The Constitution’s First Amendment makes clear that students may not be excluded
from education programs like the Dual Enrollment Program because of their religious status or
their religious choices,” Assistant Attorney General Eric Dreiband said in a statement. “The
Department of Justice is committed to ensuring that all persons may participate in benefit
programs without discrimination based on their faith.”

“Religious liberty is a fundamental and foundational right in this country,” Christina
Nolan, the U.S. Attorney for the District of Vermont, added. “We support the rights of students
to both exercise their religion and participate fully in Vermont’s educational programs. We hope
this case advances the twin paramount goals of maximizing educational opportunities for young
Vermonters and vigilantly guarding religious freedom.”

The federal government’s statement of interest emphasizes that including parochial
school students in the Dual Enrollment Program would provide them with the same secular
educational benefit – tuition at various local colleges – offered to other students. The Justice
Department adds in its filing that excluding students from this secular benefit because they have
chosen religious rather than nonreligious private schools “is impermissible.”

The Justice Department’s statement of interest points out that two years ago, in Trinity
Lutheran Church of Columbia v. Comer, the U.S. Supreme Court held that “denying a generally
available benefit solely on account of religious identity imposes a penalty on the free exercise of
religion,” and may only be justified by the most compelling governmental interests, which
Vermont has not shown.

The Justice Department’s statement of interest addresses issues highlighted in the
Department of Justice’s Guidance on Federal Law Protections for Religious Liberty issued on
October 6, 2017. The guidance states that “government may not target persons or individuals
because of their religion” and observes that “constitutional protections for religious liberty are
not conditioned upon the willingness of a religious person or organization to remain separate from civil society. . . . Individuals do not give up their religious liberty protections by providing or receiving social services, education, or healthcare.”


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