Religious private schools in Vermont will now be allowed to make use of a state-tuition assistance program that previously excluded them, after the state settled two lawsuits on the matter Nov. 30.

Vermont’s Town Tuition Program provides tuition benefits for students who live in towns without public schools, and it previously allowed payments to secular private schools but not religious ones. As part of the settlements, state and local government officials agreed that Vermont’s exclusion of religious private schools from the program is unconstitutional and unenforceable.

The Diocese of Burlington, which includes the entire state and serves some 2,300 students at 13 schools, was party to both lawsuits, as were several private-school families.

“We are glad that our schools will finally be included along with the other private and public schools as a choice for students that do not have a school in their town,” Bishop Christopher Coyne of Burlington said in a statement to CNA.

The lawsuits were filed by attorneys for the Alliance Defending Freedom (ADF), a Christian legal group. Thomas McCormick, a longtime Vermont lawyer who works with the ADF Attorney Network, is serving as local counsel on behalf of the families and the Diocese of Burlington.

On Wednesday, the U.S. District Court for the District of Vermont entered a stipulated judgment enforcing the settlement agreement. Under the settlements, the plaintiff families who requested tuition but were wrongly denied by their school districts will be reimbursed for the tuition they paid out of pocket, ADF stated. The school districts will reimburse the plaintiff families directly; other families will have the opportunity to request reimbursement from the school districts. The state of Vermont and the school districts will also pay the families’ attorney fees, ADF said.

Vermont’s school-choice program dates to 1869. The state has barred religious schools from the program since 1999, following a state Supreme Court ruling that held that public funds may not be used to "support any place of worship” under the Vermont Constitution. The lawsuits against the state were filed more than two decades later, in 2020.

The settlements in the present cases come in light of a landmark ruling by the U.S. Supreme Court in June in the case Carson v. Makin. In that decision, the court ruled 6-3 that Maine’s policy barring students in a student-aid program from using their aid to attend “sectarian” schools violates the Free Exercise Clause of the First Amendment.

In that decision, Chief Justice John Roberts noted that having chosen to fund private schools through its aid program, Maine cannot disqualify some private schools solely because they are religious. The state “pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion. A state’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”

Other recent cases before the Supreme Court have led to favorable results for advocates of school choice. In its June 2020 decision Espinoza v. Montana Department of Revenue, the court struck down as a violation of the Free Exercise Clause a state scholarship program that excluded religious schools. And in 2017, the court found in Trinity Lutheran Church of Columbia, Inc. v. Comer that a church-owned playground can be eligible for a public-benefit program.