govinfo:USCOURTS-vtd-2_23-cv-00652-2

UNITED STATES DISTRICT COURT 
FOR THE 
DISTRICT OF VERMONT 
MID VERMONT CHRISTIAN ) 
SCHOOL, et al ; ) 
) 
Plaintiffs, ) 
) 
7'.'7" t! .• '! 12 p11 2 r-4 Li:~b j ih I • fl : :J 
V. ) Case No. 2:23-cv-652 
) 
ZOIE SAUNDERS, JENNIFER ) 
DECK SAMUELSON, and WAITS ) 
RIVER VALLEY (UNIFIED #36 ) 
ELEMENTARY SCHOOL 
BOARD), 
Defendants. 
ORDER ON MOTION FOR PRELIMINARY INJUNCTION (Doc. 105-1) 
As originally filed, this case concerned a dispute over plaintiff Mid Vermont 
Christian School's ("Mid Vermont") expulsion from the Vermont Principals 
Association after its forfeiture of a girls' basketball game at which the opposing 
team included a transgender player. Following a decision by the Second Circuit 
Court of Appeals holding that "Plaintiffs are likely to succeed in establishing that 
[state education administrators] acted with hostility toward Mid Vermont's 
religious beliefs," this court entered a preliminary injunction restoring Mid 
Vermont's membership in the athletic organization. Mid Vt. Christian Sch. v. 
Saunders, 151 F.4 th 86, 95 (2d Cir. 2025). 
On October 31, 2025, Mid Vermont and members of two families seeking 
financial support through the town tuition program filed a motion to amend the 
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complaint. (Doc. 86). The court granted the motion. (Doc. 98.) The amended 
complaint challenges the constitutionality of Section 21 of Act 73 - a statute 
enacted in 2025 that imposes broad changes on many aspects of public education 
in Vermont. (Doc. 100).1 
One feature of Act 73 is a marked reduction in tuition payments to 
independent high schools by school districts that do not operate high schools of 
their own. See Act 73, § 21. Vermont has long provided for the education of these 
students by requiring the so-called "sending towns" to pay a base amount 
established by the Agency of Education to public and independent schools that 
receive the students. 16 V.S.A. § 822. Mid Vermont is among the independent 
schools that no longer qualify for these "town tuition" payments. Mid Vermont 
alleges that its exclusion from these payments is the result of religious 
discrimination in violation of the First Amendment. It also alleges a violation of 
the Equal Protection Clause. 
Plaintiffs seek a preliminary injunction restoring Mid Vermont's eligibility to 
receive town tuition payments. (Doc. 105.) Because the Agency of Education 
conditions eligibility for two programs for college-bound students on an 
independent school's qualification for town tuition payments, Mid Vermont also 
challenges the exclusion of its students from these programs. 
1 Act 73 is a substantial statute, 147 pages in length. Its provisions will be codified primarily in Titles 16 (Education) and 32 (Taxation and Finance) of the Vermont Statutes Annotated. For purposes of this decision, the court uses the citations to the various sections as these appear in the session laws for the 2025 legislative session. This version appears in the record of this case as Ex. I to the Amended Verified Complaint (Doc. I 00-1 ). Section 21 is the section most relevant to this case. It is codified at 16 V.S.A. § 828. That portion of Act 73 took effect on July I, 2025, and is codified at 16 V.S.A. § 828. Other portions of Act 73-particularly the mandatory consolidation of school districts-are the subject of continuing legislative action but are not at issue in this case. 
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Defendants respond that Act 73 is neutral with respect to religion. 2 They defend 
the limits Act 73 places on eligibility for town tuition payments on the ground that 
the limits apply to all independent schools whether these are secular or religious. 
In Defendants' view, Act 73 restricts which schools qualify for the town tuition 
payments in order to achieve economies of scale through a more centralized 
educational system. (See Docs. 121, 122.) 
The court heard argument on Mid Vermont's preliminary injunction motion 
on May 8, 2026. At the court's invitation (Doc. 132), the State Defendants 
provided a witness at the May 8 Hearing. The court has also considered 
supplemental declarations filed by Mid Vermont in support of its preliminary 
injunction motion. (Doc. 141.) 
Background 
To understand the parties' dispute, it is necessary to understand something of 
the history of public and independent schools in Vermont, the role of the Vermont 
state constitution in shaping that history, and the effect of recent U.S. Supreme 
Court decisions concerning the Free Exercise Clause. The provisions of Act 73, 
including Section 21, reflect Vermont's long engagement in questions of local 
control over education, the establishment of common standards for all schools, 
economies of scale, and equitable levels of tax support. The court seeks to give 
full consideration to "the historical background of the decision under challenge, the 
specific series of events leading to the enactment or official policy in question, and 
the legislative or administrative history, including contemporaneous statements 
2 After the amendment of the complaint shifting the focus of the case from the question of athletics to the question of 
Act 73's constitutionality (Doc. 100), and after dismissal of the claims against the Executive Director of the Vermont 
Principals Association (Doc. 135), the remaining defendants in this case are the Vermont Secretary of Education, 
Zoie Saunders, and the Chair of the Vermont State Board of Education, Jennifer Deck Samuelson (collectively, the 
"State Defendants"), plus the Waits River Valley (Unified #36 Elementary) School Board. 
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made by members of the decisionmaking body." Church of the Lukumi Babalu 
Aye, Inc. v. City of Hialeah, 508 U.S. 510,541 (1993). Through this process, the 
court seeks to answer the central question in this case which is whether Section 21 
is a neutral and generally applicable provision of law subject to a rational basis test 
or if it infringes on the free exercise of religion by improperly excluding religious 
schools from a benefit afforded to other schools, both public and independent. 
A. The Education and Compelled Support Clauses of the Vermont 
Constitution 
In July 1777, following its own Declaration of Independence in January of that 
year, Vermont adopted its first Constitution. The document drew heavily on the 
Pennsylvania Constitution of 1776 which itself owed much to the Virginia 
Declaration of Rights, also published in 1776. Vermonters are proud that their 
original Constitution was the first in America to abolish slavery. More to the point 
here, it addressed two fundamental issues that converge in this case: freedom of 
religion and public support of education. 
Section 40 of the 1777 Constitution called for the creation of a state-wide system 
of schools: 
A school or schools shall be established in each town, by the legislature 
for the convenient instruction of youth ... One grammar school in each 
county, and one university in the State ought to be established by the 
General Assembly. 
In 1786 Vermont combined two provisions of the original 1777 Constitution to 
create the Education Clause which remains in effect today. The Education Clause 
calls for the creation of a system of public education. 
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Laws for the encouragement of virtue and prevention of vice and 
immorality, ought to be constantly kept in force, and duly executed; and a 
competent number of schools ought to be maintained in each town unless the 
General Assembly permits other provisions for the convenient instruction of 
youth. 
Vt. Const. ch. II, § 68. It endorses the role of religious education in Vermont. 
Id. 
All religious societies, or bodies of people that may be united or 
incorporated for the advancement of religion and learning, or for other pious 
and charitable purposes, shall be encouraged and protected in the enjoyment 
of the privileges, immunities, and estates, which they in justice ought to 
enjoy under such regulations as the general assembly of this state shall 
direct. 
The Vermont Constitution also contains the Compelled Support Clause. This 
clause recognizes the importance of religious freedom, both in the form of free 
exercise ("That all persons have a natural and unalienable right, to worship 
Almighty God, according to the dictates of their own consciences and 
understandings ... ") and disestablishment ("no person ought to, or of right can be 
compelled to attend any religious worship, or erect or support any place of 
worship, or maintain any minister, contrary to the dictates of conscience." Vt. 
Const., Ch. l, Art. 3. 
These state constitutional provisions, both predating Vermont's admission to the 
union in 1791, touch directly on the issues raised by Act 73 and the claims made in 
this case. These include public support of local and regional schools, debate about 
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whether funding and control are matters for the towns or the state legislators, and 
the recognition of a constitutionally protected role for religious schools. 
Of the three central constitutional elements - free exercise; no compelled support; 
and the essential role of education -it would be the Compelled Support Clause that 
would direct state policy concerning religious schools in the modem era.3 Before 
considering the rise and fall of that clause, we detour to consider the development 
of public education in Vermont. 
B. Development of Public Education 
In the years prior to statehood, public education generally meant primary 
education. In 1 782, the Vermont legislature enacted a law authorizing the creation 
of local school districts, funded by tuition payments from parents of children 
attending schools. Laws of Vermont 1781-1784, pp. 137-139 (John A. Williams, 
ed. 1965.) "Townspeople traditionally maintained complete control over collecting 
taxes, building schools, and hiring teachers." Potash, State Government and 
Education: "For the Due Encouragement of Learning and the Better Regulating 
and Ordering of Schools," 65 Proceedings of the Vermont Historical Society, 45, 
48 ( 1997), https://vermonthistory.org/joumal/misc/StateGovemmentAnd 
Education.pdf [https://perma.cc/B39M-SG7R]. In the early nineteenth century, 
Vermont developed a patchwork of independent academies, supported by tuition, 
and county grammar schools to educate high school age children. Five of the 
independent academies survive to the present day and function both as the local 
public high school where they are located and as independent schools accepting 
students from outside their communities. 
3 Vermont was not among the 37 states that adopted the anti-Catholic "Blaine Amendments" that sought to prevent 
public support of parochial education in the l 870's. See Komer, Trinity Lutheran and the Future of Educational 
Choice, 44 Mitchell Hamline Law Rev. 551 (2018). 
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Local control and funding - and the severe limits on travel in the state's early years 
- led to an astonishing number of individual school districts. In 1846, the first 
annual report of the State Superintendent of Schools reported more than 2,000 
districts. Potash, State Government and Education at 54. 
In 1856, the Vermont legislature created the State Board of Education. The annual 
report of the Secretary of Education in 1857 describes the establishment of union 
high schools in cities including St. Johnsbury, Rutland, Burlington, St. Albans, 
Williston and Montpelier. George Gary Bush, History of Education in Vermont 6 l 
(1900). In 1869, the legislature passed an act allowing school districts that lacked 
their own high school to pay tuition for students at the independent academies. 
Public Act No. 9, 1869 Session Laws. This measure was the forerunner of what 
would become the town tuition system and was one of the first school-choice 
measures in the United States. 
C. Vermont's Struggle with Property Tax Inequity 
From its earliest days, the Vermont system of public education has struggled with 
the problem of equitable funding of local schools due to the uneven distribution of 
wealth among communities. The original funding formula based on tuition 
payments by parents of students resulted in relatively wealthy districts in 
population centers and inadequate schools in rural areas. 
In 1864, the legislature authorized property taxes for all landowners, including 
those without school age children, at rates set by school districts. No. 61 of the 
Acts of 1864 of the State ofVermont 69. Funding levels varied widely based on 
the distribution of wealth as well as the high number of very small districts (2,951 
statewide in 1860). 
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In 1890, legislators from rural towns, aided by an electoral system awarding one 
House representative to each town, regardless of population, enacted a statewide 
property tax. Tax revenue was divided on the basis of the number of schools in a 
district, not by student population. Legislation in 1892 required municipalities to 
form single school districts, reducing the total number of districts to 251. 
In 1931, the state income tax replaced the state property tax. School funding 
returned to local property taxes with resulting inequity between property-rich and 
property-poor towns. State government sought to address the unfairness through a 
series of formulas to distribute state aid to education: in 1935 (Vermont State Tax 
Commission); early 1960's (Hunt-Simpson Formula); 1969 (Miller Formula); 1982 
(Morse-Giuliani Formula); and 1988 (Foundation Formula). Short History of 
Education Finance in Vermont, Secretary of State. 
https://ljfo.vermont.gov/assets/Meetings/Task-Force-n-the-Implementation-of--the­
Pupil-Weighting-Factors-Report/2021-06-29/eaff3ab644/GENERAL-356877-vl­
Short History of Education Finance in Vermont.pdf [https://perma.cc/FF33-
JSZP]. 
In 1997, the Vermont Supreme Court issued its decision in Brigham v. State, 166 
Vt. 246,256 (1997), ruling that the distribution of local tax revenues and state­
wide aid to education through the Foundation Formula "which concededly denies 
equal educational opportunities, is constitutionally deficient." The Court held that 
the Education Clause identifies public education as a fundamental obligation of the 
state, subject to the Common Benefits Clause. The decision struck down the 
funding formula as it existed at the time and referred the "specific means of 
discharging this broadly defined duty [to make educational opportunity available 
on substantially equal terms]" to the legislature. Id. at 268. 
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The immediate result of the Brigham decision was the passage of Act 60 in 1997. 
The statute redistributed the funds available for school funding by requiring 
relatively wealthy school districts to share property tax revenues with less affluent 
districts. The details of Act 60 are not relevant to this dispute. While Act 60 
reduced disparities in educational funding, Vermont continued to struggle with 
unresolved issues including the burden of increased spending on education, 
growing property values and slower income growth, and concerns about where the 
education tax burden falls most heavily as the basis for further reform. See Dary 
Rollins Saas, School Finance in Vermont: Balancing Equal education and Fair Tax 
Burdens, New England Public Policy Center, Federal Reserve Bank of Boston 
(2007). https ://www.bostonfed.org/-/media/Documents/Workingpapers/PDF /nep­
cdpf070 l. pdf [https://perma.cc/8V8Z-27841]. 
Two more school funding laws, Act 68 in 2003, and Act 130 in 2004, sought to 
address the problem of inequality between towns through state aid to augment 
local school district property taxes. Vermont Department of Education, Vermont's 
Education Funding System 2011, http://education.vermont.gov/documents/EDU­
Finance Education Funding System 2011.pdf 
A recent vexing problem has been the decline in student enrollment. Between 
2002 and 2024, the total number of students enrolled in the Vermont public schools 
(pre-k-12) fell from 94,038 to 77,408 students. 
https://education.vermont.gov/data-and-reporting/vermont-education­
dashboard/vermont-education-dashboard-enrollment (navigate to "information 
Page") [https://perma.cc/XUB7-Z8KX]. This decline has resulted in calls to 
consolidate small schools, often in rural areas, and increase minimum class size to 
reduce costs. 
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This abbreviated tour of two centuries of educational policy brings us to the 
enactment of Act 73 in 2025. Before taking up that legislation, it is necessary to 
consider the history of tax support for religious schools in Vermont through the 
town tuition program. 
D. Tax Support of Religious-Based Education 
Over the course of the last 75 years, Vermont has followed the evolving decisional 
law of the Vermont Supreme Court and the U.S. Supreme Court in determining 
whether to pay town tuition to religious-based schools. Prior to the decision of the 
Vermont Supreme Court in Swart v. South Burlington Town School Dist., 122 Vt 
177, cert. denied, 366 U.S. 925 (1961), towns that did not operate their own high 
schools ( or join supervisory unions that did) paid tuition to Catholic high schools 
as well as public schools and other approved independent schools. Id. at 179. In 
the Swart decision, the court held that these payments violated the Establishment 
Clause of the U.S. Constitution. 
In Campbell v. Manchester Bd. of School Directors, 161 Vt. 441, 456 (1994), the 
Vermont Supreme Court abrogated the Swart decision, holding that under the 
three-part test established in Lemon v. Kurtzman, 403 U.S. 602 (1971), "giving 
tuition reimbursement to this plaintiff will not offend the Establishment Clause." 
But what the Vermont Supreme Court gave, it soon took away. In Chittenden 
Town Sch. Dist. v. Dept of Educ., 169 Vt. 310, 312 (1999), the Court held that "a 
school district violates [the Compelled Support Clause] when it reimburses tuition 
for a sectarian school under [16 V.S.A.] § 822 in the absence of adequate 
safeguards against the use of such funds for religious worship." There the issue 
rested until 2017 when the U.S. Supreme Court issued its ruling in Trinity Lutheran 
Church of Columbia, Inc. v. Comer, 582 U.S. 449 (2017). The Trinity Lutheran 
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decision and the subsequent rulings in Espinoza v. Montana Department of 
Revenue, 591 U.S. 464 (2020) and, most significantly, Carson v. Makin, 596 U.S. 
767 (2022) held that any educational benefit available to public school students 
must also be afforded to students enrolled in religious schools. 
Before the Carson decision, Vermont was involved in litigation that closely 
parallelled the Carson case in Maine. See A.H ex rel.Hester v. French, 985 F.3d 
165 (2d Cir. 2021). Following the Carson decision, the State of Vermont 
announced that the town tuition program would be open to students attending 
religious schools that met state educational standards. On February 19, 2025, Mid 
Vermont appeared in a state directory of independent schools approved for public 
funding. (Doc. 100-11, p. 4) This state of affairs changed in 2025 when the 
Vermont legislature enacted Act 73, the relevant components of which became 
effective July 1, 2025. A new directory issued in September 2025 placed Mid 
Vermont on a list of approved independent school ineligible for public funding. Id. 
at 35. 
E. Changes to Vermont Educational Law in Act 73 
Act 73 is entitled "An act relating to transforming Vermont's education 
governance, quality and finance systems." The title accurately captures the 
comprehensive overhaul embodied in the Act. It is helpful to review the provisions 
of the Act, including those not directly relevant to this case, to understand the 
scope of the Act and its place within two centuries of Vermont educational policy. 
The Act opens with a series of legislative findings highlighting the decline in 
public school enrollment from more than 110,000 students in the 1980's to 84,000 
in 2025. The findings describe the legislative intent to enact further reforms in the 
2026 legislative session, including the consolidation of school districts; 
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improvements in career and technical education; school board elections by ward; 
mitigation of school taxes by redrawing district boundaries, updating programs to 
improve the delivery of services in the areas ofpre-K, career and technical, and 
special education; returning educational funding to a "foundational formula" that 
reduces variations in levels of support between towns; reducing property tax bills 
through budget changes and a cap on local spending; and increasing income 
sensitive tax benefits for low and moderate income property owners. 
As often happens with reform efforts, the Act creates a new Commission on the 
Future of Public Education in Vermont to study future changes as well as a School 
District Redistricting Task Force to recommend new school district boundaries and 
a School District Voting Ward Working Group. These bodies are tasked with 
studying additional measures to implement the changes identified in the Findings. 
In Sections 5-8 entitled "Class Size Minimums," the Act establishes minimum 
class sizes for the various grades to "transform education in Vermont by leveraging 
attainable and research-based scale to increase equity of opportunity and promote 
efficiency and affordability." There is a waiver program through the State Board 
of Education that addresses particular obstacles to meeting the class size 
requirement. In the event of repeated violations of the minimum class size rules, 
the State Board has authority to take measures including closing schools and 
consolidating districts. 
At the preliminary injunction hearing, the State Defendants' witness testified that 
implementation of these sections is subject to additional rulemaking by the Agency 
of Education. The minimum class size requirements are not yet in place and have 
not led to the disqualification of any independent school from the town tuition 
program. 
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Section 21 addresses Tuition to Approved Schools. It permits school districts to 
pay the tuition of a student to a public school located in Vermont or to "an 
approved independent school" that meets the following criteria: 
• Located within Vermont; 
• Qualified as an approved independent school before July 1, 2025; 
• Located within a district or supervisory union that does not operate a 
public school for some or all grades as of July 1, 2024; 
• Received district-funded tuition for at least 25 % of its enrollment 
during the 2023-2024 school year; and 
• Complies with minimum class size requirements, subject to the right to 
seek a waiver. 
Section 22 provides for the continuation of tuition payments for students who 
received payments during the 2024-2025 school year until graduation even though 
their schools may no longer qualify. 
The remaining sections (9-11 and 23-70) order significant changes to educational 
practices, primarily through consolidation and state-wide changes to the property 
tax system. 4 These are not directly relevant to the town tuition program. The 
4 Section 9 proposes changes to graduation requirements. 
Section IO authorizes rulemaking by the State Board of Education. 
Section 11 is deleted. 
Sections 12-20 address changes in the program governing state aid for school construction. Sections 23-26 make 
changes to the governance of the State Board of Education. 
At Sections 27-28A, the Act returns to the issue of tuition payments by revising the formula used to set tuition paid 
by sending schools. 
Sections 29-30 call for a broad reevaluation of the delivery of special education, including a review of special ed programs offered by independent schools. 
Sections 31 and 33 authorize additional staff positions at the Agency of Education. Section 32 authorizes support 
for school districts undergoing consolidation. 
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court summarizes them in the footnote to draw attention to the breadth of the 
changes to state education policy. 
Act 73 imposes change on public school education and its funding through several 
directions, all sharing common themes of centralization, equalization of funding, 
and economies of scale. These include combining more than 200 school districts 
into a small number of far larger districts, consolidating or closing schools that 
cannot maintain minimum class size, recalculating support for programs such as 
Sections 34-35 make changes to the calculation of per-pupil spending or so-called "base amounts" by public 
schools. 
Section 36 authorizes the payments of base amounts and other state-wide funding amounts to public schools on a 
per-pupil basis. 
Section 37 creates an exception to the funding formula for small rural schools. These schools may receive 
additional state funds. 
Sections 38-39 create a state-wide Education Fund to receive revenues from the "supplemental district spending 
tax." 
Section 40 authorizes payments from the Education Fund to school districts. 
Section 41 modifies the statutory powers of school boards to enable them to address the supplemental district 
spending funds through their budget process. 
Section 42 is a "housekeeping" section addressing repeals of existing provisions. 
Section 43 creates a spending reserve for the supplemental district spending tax. 
Section 44 requires more information about school transportation. 
Section 45 calls for evaluation of measures to combat inflation as well as funding alternatives for pre-K education. 
Sections 45a and 45b revise the funding formula for special education and ESL students. 
Sections 46-56 impose very substantial changes to the system of statewide property taxation. These sections 
address tax rates, homestead exemptions, income sensitivity and many other issues related to the creation of a new 
tax system for supporting public education. 
Section 57 creates a new advisory body to monitor Vermont's education financing system. 
Sections 58 and 59 are deleted. 
Sections 60-67 impose broad changes on the computation of the grand lists. This changes include a distinction 
between homestead and nonhomestead uses of property (second homes). 
Sections 68 and 69 are omitted. 
Section 70 governs effective dates for the various sections. 
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special education and ESL, and providing a more equitable level of state-wide aid 
to districts. Many changes appear as topics referred to study groups for specific 
proposals. But the general purpose of the Act is clear: an increase in centralized 
authority over school spending, administration, and taxation. These changes, all in 
the service of greater uniformity and efficiency, come at some cost to Vermont's 
tradition of local control and property tax funding. 
F. Reduction in the Number of Approved Independent Schools 
Act 73 greatly reduces the eligibility of independent schools, secular and religious, 
for town tuition payments. On February 19, 2025, prior to enactment of Act 73, 
the Vermont Agency of Education published a directory of approved independent 
schools eligible for public funding. (Doc. 100-11.) Excluding therapeutic schools 
serving students with special educational needs, there are 48 schools on the list, 
including eleven Roman Catholic day schools and one school described as 
"Christian." (The court understands the term "Christian" to refer to schools that 
follow the evangelical Protestant faith.) The list is not exact. It includes Mid 
Vermont Christian Academy and Rutland Area Christian School but does not 
describe these as "Christian." The court understands this to be an inadvertent 
omission and counts three Christian schools, including Mid Vermont, on the 
approved list, bringing the total number of approved religious schools to 14.5 
On September 9, 2025, following the effective date for Act 73, the Agency of 
Education published a new Independent School Directory. Excluding therapeutic 
schools, 18 independent schools remain eligible for town tuition payments. All the 
Catholic and Christian schools previously approved for town tuition are no longer 
5 The September 2025 directory and the table provided as State's Ex. A at the hearing are not entirely consistent. 
The court counts 14 ineligible religious schools on the first and 15 on the second. Neither list identifies schools as religious or secular so the court has drawn conclusions from the names of the schools about their religious basis. 
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eligible. 17 secular independent schools also lost their eligibility for town tuition. 
Vermont Technical College in Randolph Center also lost town tuition payments for 
its special 12th grade only science-based program. 
The independent schools that remain eligible for town tuition include four ski 
academies located in East Burke, Ludlow, Stratton, and Killington as well as the five 
traditional Vermont academies. These hybrid institutions are Lyndon Institute, Burr 
& Burton Academy, The Sharon Academy, Thetford Academy, and St. Johnsbury 
Academy. 10 other secular independent schools remain eligible. 
At the hearing, the state defendants' witness provided a table showing the basis for 
ineligibility. Most schools that lost eligibility did so on the basis of both geography 
(location in a community already served by a public high school) and the 25 % town 
tuition requirement. These included 10 religious schools and 10 secular schools. 
Five religious schools were disqualified on the basis of the 25 % requirement only. 
Eight secular schools were disqualified on that basis. One secular school (the Pond 
Brook Project) met the 25 % requirement but not the geographic requirement. 
What is undisputable is that Section 21 disqualifies religious and secular schools 
alike and in similar numbers. Of the independent schools that remain eligible, five 
are traditional academies. These have long served the function of the public high 
school in their community. Four are ski academies located in relatively remote areas 
where there are no high schools. Only a handful of independent schools remain of 
the 48 schools eligible for town tuition immediately before passage of Act 73. 
ANALYSIS 
The legal standard governing issuance of a preliminary injunction requires a 
showing by the plaintiffs that they meet three criteria: 
• Likelihood of success on the merits; 
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• Irreparable harm if they do not receive injunctive relief; 
• Public interest in favor of the proposed injunction. 
Mid Vermont Christian Sch. v. Saunders, 151 F.4th 86, 92 (2d Cir. 2025). 
I. Likelihood of success on the merits 
Plaintiffs identify four reasons for their contention that they are likely to succeed. 
These are: 
1. The provisions of Act 73 disqualifying Mid Vermont from receiving town 
tuition payments were "borne out of hostility to religious schools." (Doc. 
105-1 at 6-7.) Plaintiffs allege that Act 73 was enacted in the wake of 
"myriad religiously hostile comments by public officials" and following 
multiple court rulings requiring equal treatment of religious schools. (Id. 
at 7.) 
2. Act 73 manipulates the definition of eligible independent schools to 
exclude all the religious ones in violation of Carson v. Makin, 596 U.S. 
767 (2022). 
3. Act 73 treats comparable secular activity more favorably than religious 
exercise in violation of Tandon v. Newsom, 593 U.S. 61 (2021). 
4. Act 73 requires a student's parents to choose between funding or his 
religious obligation to send his child to a Christian school in violation of 
Mahmoud v. Taylor, 606 U.S. 522 (2025). 
The state responds: 
1. The eligibility criteria in Act 73 governing town tuition are neutral as to 
religion and apply to all independent schools. (Doc. 122 at 9-10.) 
2. There is no implicit discrimination against religion because Act 73 
disqualifies secular and religious independent schools from town tuition in 
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similar numbers and based on rules that apply equally to all independent 
schools. (Id. at 11-16.) 
3. Act 73 does not interfere with a parent's right to guide the religious 
development of their child. (Id. at 16-18.) 
The State Defendants also argue that Plaintiffs have not shown that they will be 
irreparably harmed without an injunction. (Id. at 20.) 
A. Establishment v. Free Exercise Clause 
It is helpful in this case to identify which First Amendment guarantee is at issue -
the Establishment or Free Exercise Clause. The Supreme Court first considered the 
issue of public financial support of religious education in Everson v. Board of 
Education of Ewing Tp., 330 U.S. 1 (1947). The case concerned the use of public 
funds to pay for school buses for parochial school children. When it came to the use 
of tax money for religious purposes, the majority was unequivocal about the effect 
of the Establishment Clause: 
No tax in any amount, large or small, can be levied to support any religious 
activities or institutions, whatever they may be called, or whatever form they 
adopt to reach or practice religion. 
Id. at 16. But Everson does not end there. Turning to the Free Exercise Clause, the 
decision observes that the state cannot exclude citizens of various and multiple and 
religious faiths "from receiving the benefits of public welfare legislation." Id. 
The First Amendment "requires the state to be neutral in its relations with groups of 
religious believers and non-believers: it does not require the state to be their 
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adversary." Id. at 18. Since denying children transportation on a public bus - and a 
host of other public services identified in the decision - burdens their participation 
in religious observance, the Free Exercise Clause prevents the state from 
withholding the public subsidy. 
Since the Everson ruling, the Supreme Court has frequently extended the public 
benefits available to religious institutions on the grounds that particular subsidies of 
religious education did not violate the Establishment Clause. See Bd. of Ed. of 
Central Sch. Dist. No. 1 v. Allen, 392 U.S. 236 (1968)(upholding New York statute 
requiring public schools to lend textbooks to parochial schools); Walz v. Tax 
Comm 'n of City of New York, 397 U.S. 664 (1970)(upholdingproperty tax exemption 
for church property); Mueller v. Allen, 463 U.S. 388 (1983)(upholding state income 
tax deduction for educational expenses incurred in the course of religious education); 
Witters v. Wash. Dept. of Services for the Blind, 474 U.S. 481 (1986)(public 
assistance to blind student at religious college); Zobrest v. Catalina Foothills School 
Dist., 509 U.S. 1 ( 1993 )( allowing publicly-funded ASL interpreter to assist parochial 
school student); Zelman v. Simmons-Harris, 536 U.S. 639 (2002)(upholding 'school 
choice' tuition payments to religious schools). These cases held that the public 
support in particular cases remained neutral as to religion and thus avoided violating 
the Establishment Clause either because they were paid to third-parties such as 
parents or because their effect on religious observance was de minimis. 
The trend towards allowing public support of religious education took a step back in 
Locke v. Davey, 540 U.S. 712 (2004), in which the Court upheld a Washington State 
constitutional ban on funding a devotional degree. In the Court's view, the 
scholarship sought by a seminary student did not violate the Establishment Clause, 
but it did violate a more stringent state constitutional provision similar to the 
Compelled Support Clause iri Vermont. 
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The distinction in Locke between the federal and state constitutional restrictions did 
not last long. In Trinity Lutheran Church of Columbia v. Comer, 582 U.S. 449 
(2017), the Court applied strict scrutiny to Missouri's denial of access to an 
educational grant program on state constitutional grounds. The Establishment 
Clause - so long the field of battle for disputes about government payments to 
benefit religious organizations - played no role. "The parties agree that the 
Establishment Clause ... does not prevent Missouri from including Trinity Lutheran 
[in the grant program.]" Id. at 458. Instead, the Court identified the Free Exercise 
Clause as the basis for striking down a state policy derived from a state constitutional 
bar to public subsidies of religious institutions. 
Trinity Lutheran was followed in short order by Espinoza v. Montana Department of 
Revenue, 591 U.S. 464 (2020), extending the Free Exercise Clause to require a state­
sponsored scholarship program to support study at a religious school. In place of 
the incremental consideration of whether a subsidy was too closely tied to religious 
purposes, the Court announced a broad prohibition against excluding religious 
organizations and their members from any public benefit on the basis of their beliefs. 
"Status-based discrimination remains status based even if one of its goals or effects 
is preventing religious organizations from putting aid to religious uses." Espinoza, 
591 U.S. at 478. 
In Carson v. Makin, 596 U.S. 767 (2022), the Supreme Court applied this principle 
to town tuition payments to religious schools. The Carson decision struck down 
Maine's system of restricting these payments to secular independent schools. The 
Court ruled that "a neutral benefit program in which public funds flow to religious 
organizations through the independent choices of private benefit recipients does not 
offend the Establishment Clause." Id. at 781. Applying a standard of strict scrutiny, 
the majority ruled that Maine's interest in separating church and state "more 
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fiercely" than the Federal Constitution requires violated the Free Exercise rights of 
parents and students who sought tuition payments for their choice of a religious 
school. 
Vermont was involved in litigation that closely parallelled the Carson case. See A.H. 
ex rel. Hester v. French, 985 F.3d 165 (2d Cir. 2021 ). Following the Carson decision, 
the Vermont Agency of Education announced that the town tuition program would 
be open to students attending religious schools that met state educational standards. 
A. Explicit Exclusion v. Inferred Effects on Religious Practices 
The public subsidy cases described above, including Trinity Lutheran and 
subsequent decisions, all addressed the explicit exclusion of religious organizations 
from public benefits on grounds of separation of church and state. Today neither the 
Establishment Clause nor state constitutional provisions permit states to exclude 
students at religious schools from programs such as town tuition that are available 
to public school students. As the majority wrote in Trinity Lutheran, "[t]he State has 
pursued its preferred policy to the point of expressly denying a qualified religious 
entity a public benefit solely because of its religious character. Under our 
precedents, that goes too far." 582 U.S. at 466. 
This case presents a different issue. If a state law is silent about religion but has the 
practical effect of barring access to a benefit to students enrolled in religious schools, 
does it violate the Free Exercise clause? Mid Vermont does not claim that Act 73 
says anything about religious independent schools. It does not. Instead, Mid 
Vermont objects to Section 21 because it has the effect of excluding the school from 
the town tuition program. It also directs attention to the statements of some state 
legislators who opposed spending public funds on religious education. 
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Cases in which public funds are alleged to have been withheld from religious 
organizations for unstated reasons of discrimination against religious belief are 
uncommon. But cases in which a law of general application is passed that has the 
effect of curtailing free exercise have long been with us. These include mandatory 
flag salutes in public schools, West Virginia v. Barnette, 319 U.S. 624 (1943), the 
application of compulsory education laws to the Amish community, Wisconsin v. 
Yoder, 406 U.S. 205 (1972), and ordinances against proselytizing, Cantwell v. Conn., 
310 U.S. 296 (1940). Each of these cases required the Supreme Court to weigh 
religious freedom against some other public good. These cases establish the 
principle that a state statute may limit or encroach on religious practice if it is a 
neutral law of general application. The critical case establishing this legal standard 
in the modem era is Employment Division, Department of Human Resources of 
Oregon v. Smith, 494 U.S. 872, 878 (1990). 
In Oregon v. Smith, the state sought to defend its practice of denying unemployment 
benefits to people who possessed drugs in violation of state law. The drug at issue 
was peyote which Smith claimed to use for sacramental purposes. The law which 
denied him access to unemployment benefits due to his use of peyote was silent 
about religion. It neither singled out religion for adverse treatment nor provided a 
sacramental exception to the ban on peyote. It applied to all persons. 
Writing for the majority, Justice Scalia announced a new legal standard, discarding 
the strict scrutiny standard previously described in Sherbert v. Verner, 374 U.S. 398 
(1963). In its place, the Court substituted the current rule. "[I]f prohibiting the 
exercise of religion ... is not the object of the [ state law] but merely the incidental 
effect of a generally applicable and otherwise valid provision, the First Amendment 
has not been offended." 494 U.S. at 878. 
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Oregon v. Smith requires the court to make two inquiries: whether the law burdens 
religious practice and whether it is neutral and generally applicable. The 
requirement of"burden" is present in this case. The amended complaint alleges that 
Nathan Partington wishes to send his child to a religious school as part of the free 
exercise of his religious beliefs. Act 73 disqualifies the school he has chosen from 
his town's tuition payments. The denial of payment makes it more difficult for him 
to practice his faith, thereby placing a burden on his free exercise. Plaintiffs have 
supplied evidence of similar burdens for other observant families in the state. (See 
Docs. 141-1, 141-2, 141-3). 
The more critical question is whether Act 73 is neutral about issues of religious belief 
and practice and generally applicable to everyone. "Government fails to act neutrally 
when it proceeds in a manner intolerant of religious beliefs or restricts practices 
because of their religious nature." Fulton v. City of Philadelphia, 593 U.S. 522,533 
(2021 ). Mid Vermont points to the Act's effect of disqualifying all religious schools 
from town tuition payments. The State points to the neutral standards for 
qualification for the payments and the comparable number of secular independent 
schools that lost eligibility for the same reasons as the religious schools. 
If the only issue was whether the language of the statute was neutral, the State would 
win in a walk. As the State Defendants observe, "[t]he statutory criteria governing 
town tuition have always been neutral as to religion." (Doc. 122 at 3). It is the state 
and federal courts that have forbidden Vermont to provide financial support to 
religious schools on Establishment Clause grounds, restored it on the same basis, 
subsequently removed it on state constitutional grounds, and, most recently, restored 
it once again through operation of the Free Exercise Clause. . 
Mid Vermont has a second string to its bow. Drawing on the "animus" cases such 
as Masterpiece Cakeshop v. Colorado Civil Rights Comm 'n, 584 U.S. 617 (2018), 
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it offers evidence of what it describes as prejudice against public support for 
religious schools by some of the legislators who voted for Act 73. Whether this 
court should consider subjective evidence of legislative intent to restrict the free 
exercise of religious belief is a relatively novel issue. See Slattery v. Hochul, 61 F. 
4th 278, 293 (2d Cir. 2023) In several decisions, the Supreme Court has allowed 
such evidence to be considered in evaluating municipal and state agency decision 
making for evidence of intolerance of religious practice. It is not so clear that the 
same principle applies to the passage of state statutes. "It is an open question 
whether a court considering a free exercise claim should consider evidence of 
individual lawmakers' personal intentions, as is done in the equal protection 
context." Stormans, Inc. v. Wiesman, 579 U.S. 942 n.3 (2016)(Alito, J. dissenting 
from the denial of certiorari). 
Supreme Court cases allowing inquiry into the motives oflawmakers restricting free 
exercise begin with Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 
520 (1993). Faced with the prospect of animal sacrifice at a proposed Santeria 
church in Hialeah, Florida, the city council enacted ordinances prohibiting the ritual 
slaughter of domestic animals. The Court determined that the texts of these laws, 
although neutral on their face, were not conclusive in identifying their purpose. 
Instead, the Court turned to "the effect of a law in its real operation [as] strong 
evidence ofits object." Id. at 535. The Court reviewed resolutions of the city council 
describing the concerns of residents of Hialeah about religious practices, the 
exemption of kosher practices, the allowance of fishing and hunting, pet euthanasia, 
and slaughter houses, and the eradication of insects and pests as evidence of 
improper animus directed against religious belief. The Court welcomed direct and 
circumstantial evidence of purpose including "the historical background of the 
decision under challenge, the specific series of events leading to the enactment or 
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official policy in question, and the legislative or administrative history, including 
contemporaneous statements made by members of the decision making body." 508 
U.S. at 540. The plurality opinion conducted a detailed summation of statements by 
city councilors, residents, and other city officials, all exhibiting fear and dislike of 
the Santeria faith. On this fulsome record, the Court concluded that "the neutrality 
inquiry leads to one conclusion: [t]he ordinances had as their object the suppression 
of religion." Id. at 542. 
The Court also addressed the principle of general applicability. "The principle that 
government, in pursuit of legitimate interests, cannot in a selective manner impose 
burdens only on conduct motivated by religious belief is essential to the protection 
of the rights guaranteed by the Free Exercise Clause." Id. at 543. The Court 
identified numerous ways in which the ordinances at issue were "under inclusive" 
and applied only to the religious sacrifice of animals without reaching broader 
concerns of animal suffering or human health. 
Not every member of the Court was pleased with the analysis. Justice Scalia joined 
in the result but questioned the methodology of "consider[ing] the subjective 
motivation of the lawmakers, i.e. whether the Hialeah City Council actually intended 
to disfavor the religion of Santeria." Id. at 558 (Scalia, J., concurring in part.) In 
the case of First Amendment cases, Justice Scalia proposed an examination not of 
the legislators' purpose but of the effects of the law at issue. "This [ mode of analysis] 
does not put us in the business of invalidating laws by reason of the evil motives of 
their authors .... Nor, in my view, does it matter that a legislature consists entirely of 
the pure-hearted, if the law it enacts in fact singles out a religious practice for special 
burdens." Id. at 558-559. 
In Masterpiece Cakeshop v. Colorado Civil Rights Commission, 584 U.S. 617 
(2018), the Court extended similar reasoning to detecting whether a state civil rights 
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commission exhibited "some elements of a clear and impermissible hostility toward 
the sincere religious beliefs [motivating a baker's refusal to make a wedding cake 
for a gay couple." Id. at 634. 
In this case, the appeals panel that considered the actions of the Vermont Agency of 
Education and the Vermont Principals Association also cast a wide net in identifying 
"official expressions of hostility to religion." Mid Vermont Christian Sch., 151 4th 
at 93. These included testimony by the Executive Director of the VPA before a state 
legislative committee considering a bill that would prevent religious schools from 
receiving public funding and a written statement by the VPA committee that heard 
the disciplinary case. 
Lukumi, Masterpiece Cakeshop and the panel decision in this case permit judicial 
inquiry into the statements of municipal leaders, members of independent state 
commissions, and state administrators in the search for prejudice against religious 
belief. The methodological issue presented by the amended complaint in this case 
is whether the same subjective inquiry into motivation is appropriate when a federal 
court considers the constitutionality of state legislation.6 Certainly the plaintiffs 
invite such an inquiry although they also contend that the effect of Section 21 1s 
6 The question of legislative motive in constitutional jurisprudence is hardly a new problem. In Gomillion v. 
Lightfoot, 364 U.S. 339,347 (1960), the Supreme Court struck down state legislation redrawing the boundaries of 
the city of Tuskegee, Alabama because "[acts] generally lawful may become unlawful when done to accomplish an 
unlawful end." In the Sunday closing law cases, the Supreme Court applied a similar analysis, holding that a law 
intended by the legislature to aid or hinder religion would violate the establishment or free exercise clauses despite 
its general application to all stores. See Abington School District v. Schempp, 374 U.S. 203, 222 (1963)("The 
[constitutional] test may be stated as follows: what are the purpose and the primary effect of the enactment? If 
either is the advancement or inhibition of religion then the enactment exceeds the scope of legislative power as 
circumscribed by the Constitution. That is to say that to withstand the strictures of the Establishment Clause there 
must be a secular legislative purpose and a primary effect that neither advances nor inhibits religion."). The Court 
applied similar tests for purpose and effect in the establishment clause context in Board of Education v. Allen, 392 
U.S. 236 (1968) and Epperson v. Arkansas, 393 U.S. 97 (1968). In contrast, in United States v. O'Brien, 391 U.S. 
367 (1968), a Free Speech clause case challenging a federal statute making it a crime to bum a draft card, the Court 
inveighed against consideration of legislative purpose. "The decisions of this Court from the beginning lend no 
support whatever to the assumption that the judiciary may restrain the exercise of lawful power on the assumption 
that a wrongful purpose or motive has caused the power to be exerted." Id. at 383. Professor John Ely provides an 
early and comprehensive review of the issue in his article Legislative and Administrative Motivation in 
Constitutional Law, 79 Yale L.J. 1205 (1970). 
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enough to demonstrate its unconstitutionality. Plaintiff's memorandum in support 
of the motion for preliminary injunction recounts a dozen or more statements by 
state administrators and lawmakers who oppose state funding of religious schools. 
There is very little authoritative guidance about what evidence a court may consider 
in determining whether "a purportedly neutral law 'targets' religious exercise or has 
the restriction of religious exercise as its 'object."' Fulton v. City of Philadelphia, 
592 U.S. 511, 605 (2021)(Alito et al concurring)(cleaned up). Justice Alito's 
concurrence in Fulton frames the issue: 
A threshold question is whether 'targeting' calls for an objective or subjective 
inquiry. Must 'targeting' be assessed based solely on the terms of the relevant 
rule or rules? Or can evidence of the rulemakers' motivation be taken into 
account? If subjective motivations may be considered, does it matter whether 
the challenged state action is an adjudication, the promulgation of a rule, or 
the enactment of legislation? Should courts consider the motivations of only 
the officials who took the challenged action, or may they also take into 
account comments by superiors and others in a position of influence? And 
what degree of hostility to religion or a religious group is required to prove 
'targeting'? 
Id. at 606. A comprehensive and authoritative answer to these searching questions 
would be welcome, but Justice Ali to was after bigger game - reconsideration of the 
Smith neutrality test. Since Fulton, the Court has had few occasions to address these 
issues of proof because the cases concerning public benefits and tuition payments 
have involved the explicit exclusion of religious schools from tax funding.7 
7 The Fulton decision concerned agency action, not a legislative enactment. Similarly, New Hope Family Services, 
Inc. v. Poole, 966 F.3d 145 (2d Cir. 2020) addresses agency action. Research reveals no cases in which the Supreme 
Court or the Second Circuit has endorsed consideration statements of state legislators as evidence of religious 
animus and counsel have not provided any either. In Slattery v. Hochul, 61 F.4th 278, 292 (2d Cir. 2023), the court 
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The court proposes to answer the questions identified in the Fulton concurrence by 
considering all of the evidence offered by both sides concerning the effects and the 
intent of Act 73. The court will start with the question of whether the text of Act 
73 is neutral as to religion. It will then consider the effects of the Act on town 
tuition eligibility, both for religious and for secular independent schools. Finally, 
the court will survey the statements of legislators and other leaders in state 
government in a search for evidence of subjective animus or prejudice against 
religion. No category of information is excluded altogether. The text weighs most 
heavily because it is the most direct, unfiltered expression of legislative purpose. 
The effects come second because they are objective facts from which a court may 
infer purpose. The subjective statements of intent by individual lawmakers come 
third and weigh least since they represent the views of a fraction of the legislators, 
speaking in their individual capacities, in many cases in response to an opinion 
survey. 
1. Text 
The text of Act 73 contains no reference to religious belief or religious education. 
Section 21, the provision at issue here, identifies seven categories of schools or 
education programs that qualify for town tuition payments. These are: public 
schools located in Vermont; approved independent schools that meet certain criteria; 
independent schools meeting education quality standards; approved tutorial 
programs; approved education programs; public schools located in another state; and 
therapeutic schools. A religious organization may sponsor or operate a school or 
program fitting into any of these categories ( excluding public schools.) 
rejected a claim that a licensing provision, neutral on its face as to religious belief, was the product of hostility by 
some legislators to religious belief. 
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The most relevant category is that of"approved independent school." Mid Vermont 
has long been recognized by the Vermont Department of Education as an approved 
independent school. To qualify for town tuition payments, an approved independent 
school must now meet the criteria set out in Section 21. None of these concern 
religious belief or practice. The application of the statutory criteria resulted in the 
disqualification of both religious and secular independent schools in similar 
numbers. 
The criteria that disqualify Mid Vermont include its location in White River Junction, 
Vermont - a mid-sized city by Vermont standards that operates a high school, a 
middle school, 3 primary schools, and several specialty programs. Mid Vermont 
satisfies the requirement of being approved for town tuition payments before July 1, 
2025. It does not satisfy the 25 percent requirement. 
2. Effect of Section 21 on town tuition eligibility 
Like the text, the effect of Section 21 is neutral as to religion. By limiting town 
tuition payments to public schools when available in the same location, Act 73 
eliminates town tuition payments to 18 secular independent schools and 15 Catholic 
and Christian schools. Eligibility remained unchanged for therapeutic schools. 8 The 
8 Mid Vermont lumps the therapeutic schools in with other independent schools, greatly increasing the number of 
secular schools that continue to be eligible for the town tuition program. Therapeutic schools differ from other 
independent schools because they serve only students eligible for individualized education programs ("IEPs") or as 
otherwise mandated by federal law or court order. Act 73, Section 2l(d). Therapeutic schools are subject to 
regulation by the Vermont Agency of Education. Code of Vermont Regulations, Section 2232. A religious 
organization is free to establish a therapeutic school. The record contains no evidence that any religious 
organization has done so. 
Because therapeutic schools are not subject to the location, class size and other limits placed on secular and religious 
independent schools by Act 73, they now form the majority of schools qualifying for town tuition. But including 
them in the category of "secular independent schools" distorts the statistical effect of Act 73 by increasing the 
number of secular schools that remain eligible for town tuition. 
Similarly, in assessing the neutrality of section 21, the court does not count "independent school[ s] meeting 
education quality standards," "tutorial program[s] approved by the State Board," or "approved education 
program[s]" as these appear in§§ 2l(a)(3)-(6). None of these programs are subject to the geographic requirements 
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traditional academies remained eligible because their communities have never 
offered public high school education, long preferring to support the independent 
academies. 
Considered in its entirety, the policy concerns addressed by Act 73 are also neutral 
as to religion. These are primarily issues of local versus central control that have 
long informed public debate over education in Vermont. They also include concerns 
about economies of scale and equity among the towns. Act 73 contains many 
elements that favor a more centralized system of public education. It does not favor 
school choice and reduces access to public funding of independent schools. These 
are policy decisions made by the state legislature. They concern issues that have 
been present in Vermont since before statehood. Act 73 also favors consolidation of 
schools through class size restrictions for public and independent schools alike. Act 
73 prevents the addition of more independent schools to the town tuition program 
by closing the program to new applications after July 1, 2025, and by imposing a 25 
% requirement for student enrollment. Like the other requirements of Section 21, 
these restrictions apply equally to secular and religious schools. 
As these examples illustrate, Section 21 applies the same criteria for eligibility for 
the town tuition program to all independent schools. Its effect on eligibility falls on 
religious and secular independent schools alike as recipients of public aid. It 
disfavors both in equal measure. 
3. Statements by lawmakers and administrators 
Mid Vermont identifies statements by six members of the Vermont House of 
Representatives offered in response to a questionnaire circulated by the organization 
Friends of Vermont Public Education. All six opposed the use of taxpayer money 
or other limitations that are challenged here. All of these programs are open to religious and secular organizations alike. 
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for religious schools. (Doc. 105-1, p. 12). To these statements, Mid Vermont adds 
statements by Rebecca Holcombe, Vermont's Secretary of Education from 2014 -
2018 and a current member of the Vermont House, criticizing the Carson decision. 
Finally, Mid Vermont identifies two more House members who advocated for 
separation of church and state (Representative Arsenault) and called for the 
amendment of the "process by which religious schools have been included as 
recipients of Vermont's Town Tuition Program." (Representative Headrick). 
The Vermont House consists of 150 members. Mid Vermont identifies nine who 
have questioned the use of public funds to support religious education. None said 
anything critical of the Christian faith or its adherents. Representative Holcombe 
was the most critical, drawing a comparison with Afghanistan where ( one assumes) 
religious education is the norm and arguing that religious schools were intolerant of 
LGBTQ people. (Doc. 105-1 ), p. 18. 
The statements of the nine legislators identified by Mid Vermont are a thin basis for 
describing Act 73 - or just Section 21 - as motivated by religious animus. None of 
the statements were made in floor debate or as part of the Act's legislative history. 
Instead, most were made in response to an opinion survey and indicate no more than 
opposition to public funding of religious schools. They cannot reasonably be said 
to show "pervasive religious intolerance and hostility" as required by Masterpiece 
Cakeshop and Lukumi in the case of administrative action and enactment of a 
municipal ordinance. (Doc. 105-1 at 16.) 
Mid Vermont seeks to augment the record of opposition to public funding of 
religious schools by drawing attention to the history of Vermont Supreme Court 
decisions finding a basis first in the First Amendment and later in the Compelled 
Support Clause for holding public funding to be unconstitutional. (See Doc. 105-1 
at 9-10.) These decisions represent the best efforts of the Justices to interpret the 
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federal and state constitution. Their decisions were well within the mainstream of 
Establishment Clause jurisprudence until the recent line of cases that started with 
Trinity Lutheran in 201 7. These judicial decisions do not establish an historical 
record of religious bigotry. 
Finally, Mid Vermont relies on statements by administration officials opposing 
public funding for religious schools. Such statements served as a basis for a decision 
by the Second Circuit panel in this case that the administrative disciplinary action 
against Mid Vermont was a product of prejudice against religious belief. It is a step 
too far, however, to attribute the views of executive officials to state legislators. The 
executive branch officials who took action before passage of Act 73 had no vote on 
the measure. 
The court has devoted space in this ruling to placing Act 73 and the town tuition 
program in the context of two centuries of educational policy in Vermont. Public 
funding of religious schools was permitted until the Swart decision in 1961. The 
Vermont Supreme Court abrogated Swart in 1994 in the Campbell decision. The 
Court restored the ban on public funding in the Chittenden Town School District case 
in 1999 where the matter rested at both the state and national levels until the Trinity 
Lutheran decision by the U.S. Supreme Court in 2017. With this history in mind, it 
is unsurprising that some legislators opposed public funding of religious schools 
after the Carson decision and may have voted in favor of Act 73 because its effects 
include restrictions on payments to religious schools. Their views as expressed in 
the survey results relied upon by Plaintiffs do not make them bigots and their support 
of Act 73 does not define it as the product of prejudice against religious belief. 
The court concludes that the Plaintiffs are not likely to succeed in meeting their 
burden of proving that Act 73 as a whole or Section 21 alone is an unconstitutional 
infringement on the free exercise of religion. The Act is a complex funding and 
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organizational measure driven by long-standing concerns about the cost, equity and 
efficient delivery of public education. It excludes payments to all independent 
schools when a public school is present in the same district. It imposes limits on 
class size that are consistent with the limits it imposes on public schools. It 
discourages the application of independent schools to join the town tuition program 
by imposing requirements for the minimum percentage of students eligible for town 
tuition payments and foreclosing the admission of new schools to the program. 
These requirements may fairly be characterized as favoring tax support for public 
schools over independent schools at a time of declining enrollment and rising costs. 
Neither Act 73 as a whole nor Section 21 viewed in isolation is likely to be found to 
be the product of anti-religious bias. 
If the court is correct in identifying Act 73 as a statute that is neutral as to religion, 
then its constitutionality is subject to a rational basis test. It is likely to pass such a 
test since it addresses multiple issues of educational policy through a program of 
comprehensive reform. Act 73 addresses issues of local versus central control and 
equitable funding that have formed the educational debate in Vermont for two 
centuries. The specific provision at issue - Section 21 - addresses issues of school 
funding, falling enrollment, class size and the role of public education in Vermont. 
The legislative choice that resulted in ineligibility for 15 religious schools and a 
somewhat higher number of secular independent schools was the preference for 
favoring the public school system over independent schools. That is the type of 
policy decision that state legislators are entitled to make. Their decision provides a 
rational basis for the changes to Vermont law that appear in Section 21. 
II. IRREPARABLE HARM AND PUBLIC INTEREST 
Because the court finds no reasonable likelihood of success, it does not reach the 
issues of irreparable harm and public interest. The court recognizes that the appellate 
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panel found these elements to be present in A.H ex rel Hester v. French, and, in the 
event that the preliminary injunction ruling is reversed and remanded, it is likely that 
the plaintiffs will prevail on these elements of their claim. 
III. EQUAL PROTECTION 
The court agrees with the state defendants that an equal protection claim brought 
on the same grounds as a Free Exercise claim is subject to the same rational basis 
test. New Yorkers/or Religious Liberty, Inc. v. City a/New York, 125 F.4th 319, n. 4 
(2025). Act 73 passes the rational basis test under either Clause. 
CONCLUSION 
The court DENIES the motion for preliminary injunction on the ground that 
Plaintiffs have failed to make the required showing of a likelihood of success on the 
merits. 
Dated at Burlington, in the District of Vermont, this f54iay of May, 2026. 
34 
Geoffrey W. Crawford, Judge 
United States District Court 
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