Valente et al v. French et al
Filing
91
OPINION AND ORDER granting in part and denying in part 42 MOTION to Dismiss Case for Lack of Jurisdiction and Failure to State a Claim of State Defendants and granting 44 Motion to Dismiss. Signed by Judge Christina Reiss on 8/16/2021. (kp)
Case 2:20-cv-00135-cr Document 91 Filed 08/16/21 Page 1 of 29
UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MICHAEL and NANCY VALENTE, on their )
own behalf and as next friend of their child
)
Dominic; PAUL and INGRID GALLO, on their)
own behalf and as next friend of their child
)
Lucy; JOANNA and STEPHEN BUCKLEY, )
on their own behalf and as next friend of their )
)
children Carter and Hudson,
)
Plaintiffs,
)
)
V.
)
)
DANIEL M. FRENCH, in his official capacity )
as Secretary of the Vermont Agency of
)
Education and as a member of the Vermont
)
State Board of Education; THE TWO RIVERS )
SUPERVISORY UNION; LAUREN
)
)
FIERMAN, in her official capacity as
Superintendent of the Two Rivers Supervisory )
Union; THE LUDLOW MOUNT HOLLY
)
UNIFIED UNION SCHOOL DISTRICT;
)
PAUL ORZECHOWSKI, in his official
)
Capacity as Chair of the Ludlow Mount Holly )
Unified Union School District; THE GREATER)
RUTLAND SUPERVISORY UNION;
)
CHRISTOPHER SELL, in his official capacity )
as the Superintendent of the Greater Rutland
)
County Supervisory Union; THE RUTLAND )
TOWN SCHOOL DISTRICT; LYNETTE
)
GALLIPO, in her official capacity as Chair of )
the Rutland Town School District Board; THE )
WINDSOR SOUTHEAST SUPERVISORY
)
)
UNION; DAVID BAKER, in his official
capacity as Superintendent of the Windsor
)
)
Southeast Supervisory Union; THE
HARTLAND SCHOOL DISTRICT; NICOLE )
BUCK, in her official capacity as Chair of the )
Hartland School District Board; JOHN
)
Case No. 2:20-cv-00135
Case 2:20-cv-00135-cr Document 91 Filed 08/16/21 Page 2 of 29
CARROLL, in his official capacity as Chair of )
the Vermont State Board of Education; JENNA )
O'FARRELL, in her official capacity as Vice )
Chair of the Vermont State Board of Education;)
SABINA BROCHU, in her official capacity as )
a member of the Vermont State Board of
)
)
Education; KIM GLEASON, in her official
)
capacity as a member of the Vermont State
Board of Education; KATHY LAVOIE, in her )
official capacity as a member of the Vermont )
State Board of Education; WILLIAM MATHIS,)
in his official capacity as a member of the
)
Vermont State Board of Education; OLIVER )
OLSEN, in his official capacity as a member of)
the Vermont State Board of Education; PETER )
PELTZ, in his official capacity as member of )
)
the Vermont State Board of Education;
ANGELITA PENA, in her official capacity as a)
member of the Vermont State Board of
)
Education; JENNIFER DECK SAMUELSON, )
)
in her official capacity as a member of the
)
Vermont State Board of Education,
)
Defendants.
)
OPINION AND ORDER GRANTING IN PART AND DENYING IN PART
STATE DEFENDANT'S MOTION TO DISMISS AND GRANTING SCHOOL
DEFENDANT'S MOTION TO DISMISS
(Docs. 42, 44)
Minor Plaintiff Dominic, his parents Michael and Nancy Valente, minor Plaintiff
Lucy, her parents Paul and Ingrid Gallo, and minor Plaintiffs Carter and Hudson and their
parents Joanna and Stephen Buckley (collectively, "Plaintiffs") bring this action against
Defendants Daniel M. French in his official capacity as Secretary of the Vermont Agency
of Education ("AOE") and as a member of the Vermont State Board of Education
("SBE"), The Two Rivers Supervisory Union ("TRSU") and its Superintendent, Lauren
Fierman, in her official capacity, The Ludlow Mount Holly Unified Union School
District ("LMHUUSD"), Paul Orzechowski in his official capacity as Chair of
LMHUUSD, The Greater Rutland Supervisory Union ("GRSU"), Christopher Sell in his
2
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official capacity as the Superintendent of the GRSU, The Rutland Town School District
("RTSD"), Lynette Gallipo in her official capacity as Chair of RTSD, the Windsor
Southeast Supervisory Union ("WSSU"), David Baker in his official capacity as
Superintendent of the WSSU, The Hartland School District ("HSD"), Nicole Buck in her
official capacity as Chair of the HSD Board, John Carroll in his official capacity as Chair
of SBE, Jenna O'Farrell in her official capacity as Vice Chair of SBE, Sabina Brochu in
her official capacity as a member of SBE, Kim Gleason in her official capacity as a
member of SBE, Kathy Lavoie in her official capacity as a member of SBE, William
Mathis in his official capacity as a member of SBE, Oliver Olsen in his official capacity
as a member of SBE, Peter Peltz in his official capacity as a member of SBE, Angelita
Pena in her official capacity as a member of SBE, and Jennifer Deck Samuelson in her
official capacity as a member of SBE (collectively, the "Defendants"), 1 alleging that
Defendants have a policy and practice of refusing to pay tuition to religious schools
through the State of Vermont's statutory tuition program (the "Town Tuition Program").
I.
Procedural Background.
On October 16, 2020, Defendants moved to dismiss this action pursuant to Federal
Rules of Civil Procedure 12(b)(l), 12(b)(6), and 12(b)(7) for lack of standing, failure to
state a claim upon which relief can be granted, and failure to join an indispensable party
(Docs. 42, 44.) In response, Plaintiffs moved to amend their Complaint. On February 5,
2021, the court granted Plaintiffs leave to amend.
On February 9, 2021, Plaintiffs filed their First Amended Complaint (the "F AC")
alleging five claims: a violation of Plaintiffs' Free Exercise of Religion rights (Count I); a
violation of the Establishment Clause of the First Amendment to the United States
Constitution (Count 11); a violation of Plaintiffs' Freedom of Speech rights (Count III); a
violation of the Equal Protection Clause of the Fourteenth Amendment to the United
States Constitution (Count IV); and a violation of Plaintiffs' substantive Due Process
1
Defendant French and the members of the SBE are hereinafter referred to as the "State
Defendants." The "School Defendants" refers to the School Districts, their Chairpersons, the
Superintendents, and the Supervisory Unions.
3
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rights (Count V). Plaintiffs seek declaratory and injunctive relief against all Defendants,
as well as an award of compensatory or nominal damages from the School Defendants,
attorney's fees, and costs. Defendants filed supplemental memoranda in support of their
motions to dismiss on March 26 and 29, 2021, to which Plaintiffs responded. On April
30, 2021, oral argument was held at which time the court took the pending motions under
advisement.
Plaintiffs are represented by David G. Hodges, Esq., Deborah T. Bucknam, Esq.,
Erica J. Smith, Esq., and Timothy D. Keller, Esq. The State Defendants are represented
by Assistant Attorneys General Jon T. Alexander and Rachel E. Smith. The School
Defendants are represented by William F. Ellis, Esq.
II.
Constitutional and Statutory Framework.
A.
Vermont's Town Tuition Program.
Vermont's Constitution provides:
That all persons have a natural and unalienable right, to worship Almighty
God, according to the dictates of their own consciences and understandings,
as in their opinion shall be regulated by the word of God; and that no
person ought to, or ofright 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. I, art. 3 ( emphasis supplied). The latter clause is commonly referred to as
the "Compelled Support Clause."
The "Town Tuition Program" is a Vermont statutory program that provides tuition
to students who live in towns without public schools so that they can obtain a publicly
funded education. Under Vermont law,
(a) Each school district shall maintain one or more approved high schools in which
high school education is provided for its resident students unless:
(1) the electorate authorizes the school board to close an existing high school
and to provide for the high school education of its students by paying
tuition to a public high school, an approved independent high school, or an
independent school meeting education quality standards, to be selected by
the parents or guardians of the student, within or outside the State; or
(2) the school district is organized to provide only elementary education for its
students.
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(b) For purposes of this section, a school district that is organized to provide
kindergarten through grade 12 and maintains a program of education for only
the first eight years of compulsory school attendance shall be obligated to pay
tuition for its resident students for at least four additional years.
(c)( 1) A school district may both maintain a high school and furnish high
school education by paying tuition:
(A)
to a public school as in the judgment of the school board may
best serve the interests of the students; or
(B)
to an approved independent school or an independent school
meeting education quality standards if the school board
judges that a student has unique educational needs that cannot
be served within the district or at a nearby public school.
(2) The judgment ofthe [school] board shall be final in regard to the
institution the students may attend at public cost.
16 V.S.A § 822.
B.
The Role of the State Board of Education and School Boards.
The SBE hears appeals of tuition decisions made by each school district:
A school district shall not pay the tuition of a student except to a public
school, an approved independent school, an independent school meeting
education quality standards, a tutorial program approved by the State
Board, an approved education program, or an independent school in another
state or country approved under the laws of that state or country, nor shall
payment of tuition on behalf of a person be denied on account of age.
Unless otherwise provided, a person who is aggrieved by a decision of a
school board relating to eligibility for tuition payments, the amount of
tuition payable, or the school he or she may attend, may appeal to the State
Board and its decision shall be final.
16 V.S.A. § 828. The SBE also determines which schools are "approved
independent schools":
To become an approved independent school, the school must: (1) offer
elementary or secondary education; (2) provide a prescribed minimum
course of study; and (3) "substantially" comply with Vermont Board of
Education rules for approved independent schools. 16 V.S.A. § 166(b). The
rules must at a minimum require "that the school has the resources required
to meet its stated objectives, including financial capacity, faculty who are
qualified by training and experience in the areas in which they are assigned,
and physical facilities and special services that are in accordance with any
state or federal law or regulation." Id.
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Chittenden Town Sch. Dist. v. Dep't ofEduc. (Chittenden Town), 738 A.2d 539,545 (Vt.
1999) (footnote omitted).
C.
Chittenden Town's Requirement of "Adequate Safeguards."
The Vermont Supreme Court has described the Town Tuition Program as "quite
simple"; if a town school district "provides elementary education, it is required to provide
secondary education." Id. at 544 (citing 16 V.S.A. § 822(a)). A town "has a number of
options in meeting this obligation. The two main ones are to maintain a public high
school or to pay tuition 'to an approved public or independent high school, to be selected
by the parents or guardians of the pupil, within or without the state." Id. (footnote
omitted) (quoting 16 V.S.A. § 822(a)-(b)).
"Neither the [Town Tuition Program] statute nor the rules deal with sectarian
education[]" and "neither the statute nor the rules deal with the religious part of the
curriculum of a sectarian school." Id. at 545. There is thus "no limit on the quantity and
nature of sectarian subjects[,]" nor is there any requirement that "sectarian education be
separated from secular education. It is [therefore] entirely possible that the majority of the
education in an approved independent school will be in religious tenets and doctrine." Id.
(footnote omitted). This lack of restraints on a publicly funded religious education
prompted the Vermont Supreme Court to "consider the constitutional implications of the
[Town Tuition Program] authorizing school districts to provide high school education to
their students by paying tuition for nonpublic schools selected by their parents." Id. at
541 (citing 16 V.S.A. §§ 822, 824).
Having concluded in a prior case that "the Establishment Clause of the United
States Constitution was not an impediment to the reimbursement at public expense of
tuition paid to a sectarian school[,]" in Chittenden Town, the Vermont Supreme Court
addressed "whether the tuition reimbursement scheme transgresses the Compelled
Support Clause of the Vermont Constitution, Vt. Const. ch. I, art. 3, which speaks not to
establishment of religion but to state support of religious worship." 73 8 A.2d at 541.
Holding "that a school district violates Chapter I, Article 3 [of Vermont's
Constitution] when it reimburses tuition for a sectarian school under [16 V.S.A.] § 822 in
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the absence of adequate safeguards against the use of such funds for religious worship[,]"
id. at 541-42, the Vermont Supreme Court observed that "Article 3 is not offended ...
unless the compelled support is for the 'worship' itself." Id. at 550. As a result, the
constitutional defect to be remedied in Vermont's Town Tuition Program is the absence
of "restrictions that prevent the use of public money to fund religious education." Id. at
562 (observing the court saw "no way to separate religious instruction from religious
worship").
To the extent that Chittenden Town may be misread as precluding all payments of
public funds to religious schools, the Vermont Supreme Court specifically disavowed that
interpretation:
Because we have concluded that Chittenden' s tuition payments to religious
schools violate Article 3, [the Compelled Support Clause,] we must address
plaintiffs additional contention that such an outcome violates the Free
Exercise Clause of the First Amendment. It plainly does not. The Free
Exercise argument is premised on plaintiff's assumption that we would
conclude that children who attend religious schools may not receive public
educational funding, while children who attend public schools may. This is
not our ruling. We have determined only that public funds may not pay for
religious worship within the meaning ofArticle 3, wherever it occurs.
Id. at 563 (emphasis supplied).
D.
"Adequate Safeguards" Remains Undefined.
The Vermont Supreme Court acknowledged that "adequate safeguards" and
"appropriate restrictions[]" could render publicly funded tuition payments to religious
schools constitutionally permissible. Id. at 542, 564. It has cautioned that Chittenden
Town is a "narrow ruling" whose "most critical lesson ... is that the fact that the
recipient of government support is a religious organization is not itself
determinative[;] ... whether the funds are used to support religious worship is the critical
question." Taylor v. Town of Cabot, 2017 VT 92,, 23, 205 Vt. 586, 597-98, 178 A.3d
313, 320 (observing that Chittenden Town does not prevent "children who attend
religious schools" from "receiv[ing] public educational funding").
The Vermont Supreme Court has recognized that there are "myriad ways that a
public school district can subsidize education in a religious school by paying for expenses
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that occur whether or not the school was sectarian." Chittenden Town, 738 A.2d at 562
(footnote omitted). It, however, has never described those ways. In response to a certified
question as to how "adequate safeguards" should be defined or determined, the Vermont
Supreme Court has declined to answer, asserting that it requires a factual record which
documents a school board's attempt to define that standard for itself. Because, in this
case, the school boards did not attempt to do so, the Vermont Supreme Court declined to
provide guidance as to how that task should be undertaken.
The AOE has similarly declined to provide guidance. On January 14, 2021, AOE
promulgated nonmandatory "best practices" for school districts that pay tuition to
approved independent schools but has since rescinded them. As a result, there is presently
no definition of the term "adequate safeguards" as used in Chittenden Town and no
guidance as to how that determination should be made.
Because Plaintiffs assert no facial challenge to the Compelled Support Clause of
the Vermont Constitution, where possible, the court must harmonize the dictates of
Vermont and federal law. See Planned Parenthood Ass 'n of Kansas City, Mo., Inc. v.
Ashcroft, 462 U.S. 476, 493 (1983) (holding that "[w]here fairly possible, courts should
construe a statute to avoid a danger of unconstitutionality"); Causeway Med. Suite v.
leyoub, 109 F.3d 1096, 1107 (5th Cir. 1997) (holding that when "consider[ing] the
constitutionality of state [laws]," the court should be "mindful of the principle that [it]
should avoid 'federal-court nullification of state law,"') (quoting Leavitt v. Jane L., 518
U.S. 137, 145 (1996)). Federal law, however, remains the supreme law of the land. See
Testa v. Katt, 330 U.S. 386, 391 (1947) (holding that "the Constitution and the laws
passed pursuant to it are the supreme laws of the land").
III.
The FAC's Allegations.
A.
The Parties and Their Tuition Requests.
The school districts in which the Plaintiffs reside do not maintain a public high
school and are therefore permitted to participate in the Town Tuition Program. Each of
the schools that Plaintiffs attend meet the requirements to be an approved independent
school under 16 V.S.A. § 166. Plaintiffs allege that students attending the schools are
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nonetheless "ineligible to receive tuition payments based on religion." (Doc. 73 at 15-16,
,i,i 73, 78.)
Dominic Valente and his parents Michael and Nancy Valente are residents of
Mount Holly, Vermont, part of the LMHUUSD which is a member of the TRSU.
Dominic attends Mount St. Joseph Academy, a Catholic school, "because of its highquality academics, smaller class sizes, accessible sports programs, and its location near
[the Valentes'] home." Id. at 5, ,i 13. The Valentes requested tuition for Dominic to
attend Mount St. Joseph Academy for the 2019-2020 school year but were informed by
the superintendent of their school district that its "legal counsel [had] informed [them]
that sending public funds to a religious school is a violation of Article 3 of the Vermont
Constitution." (Doc. 73 at 19, ,i 94.) The Valentes renewed their request for tuition for the
2020-2021 school year and their request was formally denied by their school district. As
a result, the Valentes paid $6,500 for Dominic to attend Mount St. Joseph Academy in
2019 and 2020.
Lucy Gallo and her parents Paul and Ingrid Gallo live in Rutland Town, Vermont,
part of the RTSD which is a member of the GRSU. The Gallos are Catholic, and Lucy
attends Mount St. Joseph Academy "because the school's religious worldview aligns with
[the Gallos'] sincerely held religious beliefs" and "because of its high-quality academics,
traditional grading system, excellent sports programs, smaller class sizes, and to prepare
[Lucy] for college." Id. at 6, ,i 14. The Gallos requested tuition for Lucy to attend Mount
St. Joseph Academy for the 2019-2020 school year. An official from RTSD asked for
guidance from AOE, and an AOE official responded that "there is no change in a
district's ability to pay tuition to a parochial school. The Chittenden decision still stands."
(Doc. 73 at 20, ,i 97 .) RTSD subsequently denied the Gallos' request. The Gallos
renewed their request for the 2020-2021 school year and were formally denied by their
school district. As a result, the Gallos paid $6,500 for Lucy to attend Mount St. Joseph
Academy in 2019 and 2020.
Carter and Hudson Buckley and their parents Steve and Joanna Buckley live in
Hartland, Vermont, part ofHSD which is a member of the WSSU. The Buckleys are
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Catholic, and Carter and Hudson Buckley attend the New England Classical Academy
("NECA"), an independent Catholic school in Claremont, New Hampshire, "because the
school's religious worldview aligns with their sincerely held religious beliefs" and
"because of its high academic standards." Id. at 6, ,r 15. The Buckleys requested tuition
for their sons to attend NECA for the 2019-2020 school year but were told by Defendant
David Baker that "the State Supreme Court ruled on the Constitutional prohibition of any
taxpayer money contributed to an independent school that is foundationally religious."
(Doc. 73 at 20, ,r 99.) HSD's website also states that "[s]tudents may also attend any nonreligious private school and Hartland pays the tuition according to the statewide average,
with the child's family paying the remaining tuition balance." Id. at 20, ,r 100. The
Buckleys renewed their request for the 2020-2021 school year and were formally denied
by HSD. As a result, the Buckleys paid $6,750 for each of their children to attend NECA
in 2019 and 2020.
B.
The SBE's April 21, 2021 Decision.
Each Plaintiff appealed the denials of their 2020-2021 tuition requests to the SBE,
but at the time of the filing of the FAC, SBE had not yet issued a decision on any of the
appeals. On April 21, 2021, SBE decided Plaintiffs' appeals of the respective school
boards' tuition decisions for the 2020-2021 school year. (Doc. 85-1.) Because
LMHUUSD granted the Valentes' request for tuition upon reconsideration, SBE denied
their appeal as moot. It, however, granted the Gallos' and the Buckleys' appeals and
ordered their respective school districts to pay tuition to their chosen schools at the
allowable rate for the 2020-2021 school year. In rendering its decision, the SBE did not
define Chittenden Town's use of "adequate safeguards" but instead observed that
"[u]ltimately the courts will have to resolve whether the use restriction that Chittenden
requires can co-exist with First Amendment requirements." Id. at 21. The SBE explained
its rationale in relevant part as follows:
[T]he limited record available to the Board shows only that the requests
were denied by the school boards, upon the advice of counsel. The record
does not establish that the tuition requests were denied because the schools
at issue would use public funds for religious worship or instruction.
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Nothing in the record suggests that the schools were asked whether they
could certify that public tuition dollars would not be used to fund religious
worship or religious instruction.
Espinoza's holding is clear: appellants cannot be excluded from access to
tuition payments based solely on the religious affiliations of the schools
their children attend. Much as the Second Circuit held in A.H, the Board is
unable to find in the record here a basis for the denial other than religious
status.
In reaching this decision, the Board does not hold - nor could it - that the
Vermont Supreme Court's interpretation of the Compelled Support Clause
in Chittenden conflicts with Espinoza. Chittenden holds, in essence, that the
Compelled Support Clause requires a use-based limitation on public tuition
payments. It does not prohibit tuition payments to religious schools
generally or to any category of religious schools. It only requires sufficient
safeguards to ensure that public funds are not used to support religious
worship or religious instruction. Chittenden, 169 Vt. at 344, 738 A.2d at
563; Taylor, 2017 VT 92, ,I 23.
The problem here is that the record does not show that these tuition
requests were denied because the schools at issue would have used public
dollars to fund religious worship or religious instruction. The State Board
assumes that the school boards were motivated by this concern in
attempting to apply Chittenden. But Espinoza makes clear that religious
status cannot be used as a stand-in for religious use. See 140 S. Ct. at 2256.
"A State need not subsidize private education. But once a State decides to
do so, it cannot disqualify some private schools solely because they are
religious." Id. at 2261. Given the "strictest scrutiny" that Espinoza requires,
the Board concludes that the tuition denials in the Gallo, Buckley, and
Dunne appeals must be reversed, and the school districts ordered to make
the tuition payments.
The Board is cognizant that school districts and local school boards have
been placed in a difficult position with respect to tuition requests for
religious schools. By statute, the districts must decide whether or not to
grant a request for a particular school. The Chittenden ruling itself,
however, left unclear what safeguards were necessary under the Vermont
Constitution. The State did not adopt legislation or rules to implement
Chittenden - either before or after the U.S. Supreme Court's decisions in
Trinity Lutheran and Espinoza. Further, because the school boards issued
no written decisions, and decided these requests on the advice of counsel
provided in executive session, the State Board is effectively not privy to the
reasoning underlying the boards' decisions. This decision is thus narrow
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and its language carefully chosen: the State Board is unable to conclude on
this limited record that the tuition denials satisfied the First Amendment
standards set forth in Trinity Lutheran and Espinoza.
(Doc. 85-1 at 18-19) ( footnotes omitted).
C.
The Role of the State Defendants.
Under Vermont law, Defendant French's duties include "[s]upervis[ing] and
direct[ing] the execution of the laws relating to the public schools and ensur[ing]
compliance." 16 V.S.A. § 212(5). Plaintiffs allege that the AOE has the authority to
withhold a school district's funding if the district violates the requirements of law
pursuant to 16 V.S.A. § 4003(a) which states that "[n]o school district shall receive any
aid under this chapter unless that school district complies with the provisions of law
relative to teachers' salaries, appointment of superintendents, detailed financial reports to
the Agency, and any other requirements oflaw." Plaintiff alleges that the SBE:
is responsible for the establishment, advancement, and evaluation of public
education policy. The powers and duties of the Board include making
regulations governing: attendance and records of attendance of all pupils,
standards for student performance, adult basic education programs,
approval of independent schools, disbursement of funds, and equal access
for all Vermont students to a quality education.
(Doc. 73 at 11, 142.)
Plaintiffs contend that "State Defendants have a policy and practice of advising,
informing, instructing, and directing the School Defendants that they may not pay tuition
for residents' students to attend schools that offer religious worship and instruction or are
otherwise deemed too religious," id. at 21, 1 107, and that this policy has "a
determinative and coercive effect on the School Defendants' decision making." Id. at 21,
1104. They note that, "[i]n the past, the [AOE] has withheld state funding to at least one
school district that paid tuition to schools deemed 'sectarian[,]"' id. at 7, 119, and that
Defendant French has previously stated that "[i]n order to be an approved independent
school [under the Town Tuition Program], the school must be: 1) non-sectarian, and 2)
maintain an accredited curriculum." Id. at 18,188. In December 2019, an AOE official
stated that "public tuition can be paid to approved, non-sectarian independent schools."
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Id. at 18, ,r 89. Plaintiffs contend that "State Defendants have not taken appropriate steps
to prevent school districts from discriminating against religion in the Town Tuition
Program[.]" Id. at 22, ,r 109. They maintain that the State Defendants have failed to
develop the "adequate safeguards" required to ensure that public funds do not pay for
religious worship under Chittenden Town.
D.
The Role of the Supervisory Union Defendants.
Vermont's Town Tuition Program creates no specific role for Supervisory Unions
in addressing tuition requests. The Superintendents of each of the Supervisory Unions,
however, are "the chief executive officer for the supervisory union board and for each
school [district] board within the supervisory union[.]" 16 V.S.A. § 242. Plaintiffs have
named each of these individuals as a defendant as well as their respective school districts.
Plaintiffs nonetheless assert that each Supervisory Union Defendant "is obligated to
enforce the legal and regulatory requirements for Vermont's tuition-payment system
within its jurisdiction and is obligated to exercise its authority and powers in accordance
with the U.S. Constitution." (Doc. 73 at 7-8, 10, ,r,r 22, 29, 36.) Plaintiffs admit, however,
that only the School District Defendants are "financially responsible for providing the
Tuition Benefit for children who live within [their] district[s.]" Id. at 8-10, ,r,r 26, 33, 40.
IV.
Conclusions of Law and Analysis.
A.
Standard of Review.
"A case is properly dismissed for lack of subject matter jurisdiction under Rule
12(b)(l) when the district court lacks the statutory or constitutional power to adjudicate
it." Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). "In resolving a motion
to dismiss under Rule 12(b)( 1), the district court must take all uncontroverted facts in the
complaint ... as true, and draw all reasonable inferences in favor of the party asserting
jurisdiction." Tandon v. Captain's Cove Marina ofBridgeport, Inc., 752 F.3d 239,243
(2d Cir. 2014 ). "A plaintiff asserting subject matter jurisdiction has the burden of proving
by a preponderance of the evidence that it exists." Fountain v. Karim, 838 F.3d 129, 134
(2d Cir. 2016) (internal quotation marks and citation omitted).
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To survive a motion to dismiss, the FAC "must contain sufficient factual matter,
accepted as true, to 'state a claim to relief that is plausible on its face."' Elias v. Rolling
Stone LLC, 872 F.3d 97, 104 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) ). The sufficiency of a complaint is evaluated using a "two-pronged approach[.]"
Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010) (quoting Iqbal, 556 U.S. at 679).
First, the court discounts legal conclusions and "[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements[.]" Iqbal, 556 U.S. at 678.
Second, the court considers whether the factual allegations, taken as true, "plausibly give
rise to an entitlement to relief." Id. at 679. This second step is fact-bound and contextspecific, requiring the court "to draw on its judicial experience and common sense." Id.
The court does not "weigh the evidence" nor "evaluate the likelihood" that a
plaintiff will prevail on his or her claims. Christiansen v. Omnicom Grp., Inc., 852 F.3d
195,201 (2d Cir. 2017). "When considering a motion to dismiss pursuant to Rule
l 2(b )( 6), the district court ... is required to accept as true the facts alleged in the
complaint, consider those facts in the light most favorable to the plaintiff, and determine
whether the complaint sets forth a plausible basis for relief." Galper v. JP Morgan Chase
Bank, NA., 802 F.3d 437,443 (2d Cir. 2015).
B.
Whether Plaintiffs Have Standing to Sue the State Defendants.
"Standing is a federal jurisdictional question 'determining the power of the court
to entertain the suit.'" Carver v. City ofN Y, 621 F .3 d 221, 225 (2d Cir. 2010) (quoting
Warth v. Seldin, 422 U.S. 490, 498 (1975)). "[T]he irreducible constitutional minimum of
standing contains three elements." Lujan v. Deft. of Wildlife, 504 U.S. 555, 560 (1992).
First, the plaintiff must have suffered an injury in fact - an invasion of a
legally protected interest which is (a) concrete and particularized and (b)
actual or imminent, not conjectural or hypothetical[.] Second, there must be
a causal connection between the injury and the conduct complained of - the
injury has to be fairly traceable to the challenged action of the defendant,
and not the result of the independent action of some third party not before
the court. Third, it must be likely, as opposed to merely speculative, that the
injury will be redressed by a favorable decision.
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Id. at 560-61 (internal quotation marks, citations, alterations, and footnote omitted). "The
party invoking federal jurisdiction bears the burden of establishing these elements[.]" Id.
at 561 (internal citation omitted).
The State Defendants do not dispute that Plaintiffs have plausibly pied an injury in
fact, but contend that Plaintiffs do not have standing because they fail to allege either
causation or redressability against both Defendant French and the SBE. Plaintiffs admit
that it is not the State Defendants, but rather the School Districts, who are "financially
responsible for providing the Tuition Benefit for children who live within [their]
district[s.]" (Doc. 73 at 8-10, ,, 26, 33, 40.) As the Vermont Supreme Court has
explained:
[a]lthough the relevant statutes allow school districts to pay tuition on
behalf of a resident who is a student in any approved private school, the
districts must determine whether such a payment violates the Establishment
Clause. This responsibility rests upon them, and not the State Board, except
as a matter of appellate review.
Campbell v. Manchester Bd. ofSch. Dirs., 641 A.2d 352, 356 (Vt. 1994) (emphasis
supplied). Notwithstanding this clear mandate, Plaintiffs maintain that the State
Defendants caused an injury by "maintain[ing] a policy and practice to instruct the
School Defendants not to grant [tuition] requests when the religious school provide[ s]
religious worship and teachings." (Doc. 82 at 2.)
"[T]he 'case or controversy' limitation of Art. III ... requires that a federal court
act only to redress injury that fairly can be traced to the challenged action of the
defendant, and not injury that results from the independent action of some third party[.]"
Simon v. E. Kentucky Welfare Rts. Org., 426 U.S. 26, 41-42 (1976). "[I]ndirectness of
injury, while not necessarily fatal to standing, may make it substantially more difficult to
meet the minimum requirement of Art. III: To establish that, in fact, the asserted injury
was the consequence of the defendants' actions, or that prospective relief will remove the
harm." Id. at 44-45 (internal quotation marks omitted). This is because the Supreme
Court has "refus[ed] to endorse standing theories that rest on speculation about the
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decisions of independent actors[.]" Dep't of Com. v. New York, 139 S. Ct. 2551, 2566
(2019) (internal quotation marks and citation omitted).
However, "[w]hile ... it does not suffice if the injury complained of is the result
of the independent action of some third party not before the court, that does not exclude
injury produced by determinative or coercive effect upon the action of someone else."
Bennett v. Spear, 520 U.S. 154, 169 (1997) (internal quotation marks, alterations, and
citations omitted) ( emphasis in original); see also Carter v. HealthPort Techs., LLC, 822
F.3d 47, 55-56 (2d Cir. 2016) (holding that "[a] defendant's conduct that injures a
plaintiff but does so only indirectly, after intervening conduct by another person, may
suffice for Article III standing"). At the pleading stage, this is not "an onerous
standard[,]" id. at 55, but is instead a "relatively modest" burden to meet. Bennett, 520
U.S. at 171.
Where, as here, "a plaintiffs asserted injury arises from the government's
allegedly unlawful regulation (or lack of regulation) of someone else, ... causation and
redressability ordinarily hinge on the response of the regulated (or regulable) third party
to the government action or inaction[,]" and it is "the burden of the plaintiff to adduce
facts showing that [the choices of the third party] have been or will be made in such
manner as to produce causation and permit redressability of injury[.]" Lujan, 504 U.S. at
562 (internal quotation marks and citations omitted). "At the pleading stage, general
factual allegations of injury resulting from the defendant's conduct may suffice" because
"on a motion to dismiss we presume that general allegations embrace those specific facts
that are necessary to support the claim." Id. at 561 (internal quotation marks, citation, and
alteration omitted).
Plaintiffs assert that the State Defendants have "a policy and practice of advising,
informing, instructing, and directing School Defendants that they may not pay tuition for
residents' students to attend schools that offer religious worship and instruction or are
otherwise deemed too religious[.]" (Doc. 73 at 21, ,r 107.)2 Plaintiffs allege two instances
2
In Plaintiffs' initial opposition to the State Defendants' motion to dismiss, they maintained that
"State Defendants caused an injury by refusing to enforce the federal constitution's
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in which AOE officials have indicated, albeit not directly to the School Defendants, that
public funds are not available to fund tuition at "sectarian" schools. They further allege
that this policy "has a determinative and coercive effect on the School Defendants'
decision making" and that "[bJut for" this policy, "Plaintiffs' respective school districts
would have paid tuition at their respective religious schools." Id. at 21, ,r,r 104, 108.
Plaintiffs' theory of standing is more than mere speculation because it "relies ... on the
predictable effect of Government action on the decisions of third parties." Dep 't of Com.,
139 S. Ct. at 2566; see also Dennis v. JP Morgan Chase & Co., 343 F. Supp. 3d 122, 156
(S.D.N.Y. 2018) (observing that "the standard for Article III standing is not whether[]
the alleged injury is plausibly fairly traceable, but, rather, whether the injury is possibly
fairly traceable") ( emphasis in original).
The State Defendants argue that Plaintiffs' claims of standing "are belied by
[their] evidence and other allegations" because Plaintiffs conceded that the AOE refused
to provide guidance to the School Defendants regarding Plaintiffs' 2020-2021 tuition
requests and because the School Defendants denied Plaintiffs' tuition requests on the
advice of their counsel. (Doc. 77 at 8.) However, "[t]o the degree that defendants
challenge the factual underpinnings of the allegations made by plaintiffs in support of
their standing to bring suit, the argument is premature." Fair Hous. in Huntington Comm.
Inc. v. Town ofHuntington, NY, 316 F.3d 357,361 (2d Cir. 2003). "Defendants may
certainly test [Plaintiffs'] standing as the litigation progresses by requesting an
antidiscrimination requirements among the school districts that they oversee." (Doc. 55 at 3.) To
the extent that Plaintiffs argue that they have standing because "[i]t is State Defendants'
responsibility to establish the state's education policy" and the State Defendants have not
"withh[e]Id funds from school districts that defy that policy[,]" such a theory of causation must
fail. Id. at 4. The State Defendants' general authority over education is insufficient, without
more, to establish traceability. See Jacobson v. Florida Sec '.Y ofState, 974 F.3d 1236, 1254 (11th
Cir. 2020) (holding that "[i]n the absence of any evidence that the Secretary controls ballot order,
the voters and organizations likewise cannot rely on the Secretary's general election authority to
establish traceability").
17
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evidentiary hearing or by challenging [Plaintiffs'] standing on summary judgment or
even at trial." Baur v. Veneman, 352 F.3d 625, 642 (2d Cir. 2003). 3
The allegations in the F AC, taken as true, plausibly allege that the State
Defendants have contributed to Plaintiffs' injuries by providing guidance that, in tum,
caused the School Defendants to reject their tuition requests, and Plaintiffs plausibly
allege that, but for the State Defendants' policy, the School Defendants would have
granted their tuition requests. It is therefore plausible that injunctive relief would redress
Plaintiffs' harm. At this stage, plausibility is all that is required. See Alliant Energy Corp.
v. Bie, 277 F.3d 916, 920 (7th Cir. 2002) (holding that "[i]t is easy to imagine facts
consistent with this complaint and affidavits that will show plaintiffs' standing, and no
more is required") (emphasis in original). The State Defendants' motion to dismiss for
lack of standing is therefore DENIED.
C.
Whether Plaintiffs Have Standing to Sue the Supervisory Union
Defendants.
The School Defendants contend that Plaintiffs lack standing to sue the three
Supervisory Union Defendants because Plaintiffs fail to allege causation or redressability
against them. The Supervisory Union Defendants point out that the F AC contains no
allegations regarding their role in the tuition process and that Plaintiffs acknowledge that
it is the School Districts, who are members of the Supervisory Unions, rather than the
Supervisory Unions themselves, who are financially responsible for providing the tuition
benefit for children residing within their districts. It is also the School District
Defendants, not the Supervisory Unions, who "must determine whether such a payment
3
The State Defendants argued in their original motion to dismiss that Plaintiffs' claims were
unripe because they had not yet received final decisions from the school districts. At the hearing,
the State Defendants conceded that there is no longer a ripeness issue, but argued that Plaintiffs'
claims are moot because the SBE granted their appeals for tuition for the 2020-2021 school year.
Because Plaintiffs allege that the State Defendants have a long-standing policy and practice of
instructing the School Defendants to deny tuition requests to religious schools and because
Plaintiffs' requests for tuition for the 2019-2020 school year were denied, the court may still
provide effective relief and the case is not moot. See Calderon v. Moore, 518 U.S. 149, 150
( 1996) (holding the "even the availability of a partial remedy is sufficient to prevent a case from
being moot") (internal quotation marks, alteration, and citation omitted).
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violates the Establishment Clause[,]" Campbell, 641 A.2d at 356, and their judgment
"shall be final in regard to the institution the students may attend at public cost." 16
V.S.A. § 822(c)(2).
Plaintiffs contend that "even if there were a statute making clear that the
[Supervisory U]nions lack the power to determine tuition requests, this is irrelevant"
because "the [S]upervisory [U]nions did play a role in making these determinations[.]"
(Doc. 83 at 4) ( emphasis in original). Plaintiffs do not, however, assert these same
allegations in their FAC. Instead, Plaintiffs only allege that they "asked their school
districts ... to pay the tuition at their respective religious schools" and that their tuition
requests were rejected by their school districts, including by the Superintendents of the
Supervisory Unions who acted as chief executive officers of their respective school
district boards and who are also named as Defendants. (Doc. 73 at 19, ,i 93) (emphasis
supplied). To the extent Plaintiffs allege that a Superintendent played a role in the
decision-making, they allege no similar role by the Supervisory Union. 4
Because Plaintiffs do not plausibly allege that the Supervisory Unions, as opposed
to their Superintendents and member School Districts, played any role in the tuition
decisions which caused their injuries, they lack standing to sue these entities. The School
Defendants' motion to dismiss TRSU, GRCSU, and WSSU is therefore GRANTED.
4
The Valentes allege that the denial of their 2019-2020 tuition request was transmitted "inanemail from the superintendent of their school district" and that their subsequent request for the
2020-2021 academic year was "formally rejected by their school district." (Doc. 73 at 19, ,r,r 94,
95.) Similarly, the Buckleys allege that their 2019-2020 tuition request was rejected by
Defendant David Baker, who is the Superintendent of WSSU as well as the chief executive
officer ofHSD, and that their request for the 2020-2021 school year was also "formally rejected
by their school district." (Doc. 73 at 21, ,r 101.) Only the Gallos allege that their request for
tuition for the 2019-2020 school year was denied by "Defendant Rutland Supervisory Union[,]"
but this allegation conflicts with their assertion that they requested tuition "from their school
district[.]" Id. at 19-20, ,r 97. See In re Express Scripts/Anthem ERISA Litig., 285 F. Supp. 3d
655, 671 (S.D.N.Y. 2018) (holding that "the [c]ourt is not obliged to reconcile and accept as true
pleadings that are contradicted by other matters asserted or relied upon") (internal quotation
marks and citation omitted).
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D.
Whether the State Defendants are Protected by Sovereign Immunity.
The Eleventh Amendment provides that "[t]he Judicial power of the United States
shall not be construed to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State, or by Citizens or Subjects of
any Foreign State." U.S. Const. amend. XI. "The Supreme Court has consistently held
that the federal courts lack jurisdiction not only over suits against a state brought by
citizens of other states, as the literal language of the Amendment provides, but also over
suits against such states brought by their own citizens." Dwyer v. Regan, 777 F.2d 825,
835 (2d Cir. 1985). "An action against a state official in his official capacity is deemed an
action against the state itself, which possesses sovereign immunity under the Eleventh
Amendment[.]" Libertarian Party ofErie Cnty. v. Cuomo, 970 F .3d 106, 122 (2d Cir.
2020) (internal citations omitted).
"The Court has recognized an important exception to this general rule: a suit
challenging the constitutionality of a state official's action is not one against the State."
Pennhurst State Sch. & Hosp. v. Halderman, 465 U.S. 89, 102 (1984). This is because
"the officer is simply prohibited from doing an act which he had no legal right to do." Ex
Parte Young, 209 U.S. 123, 159 (1908). "In determining whether the doctrine of Ex parte
Young avoids an Eleventh Amendment bar to suit, a court need only conduct a
'straightforward inquiry into whether [the] complaint alleges an ongoing violation of
federal law and seeks relief properly characterized as prospective."' Verizon Maryland,
Inc. v. Pub. Serv. Comm 'n ofMaryland, 535 U.S. 635,645 (2002) (quoting Idaho v.
Coeur d'Alene Tribe ofIdaho, 521 U.S. 261,296 (1997)); see also In re Deposit Ins.
Agency, 482 F.3d 612, 618 (2d Cir. 2007) (holding that "[a] plaintiff may avoid the
Eleventh Amendment bar to suit and proceed against individual state officers, as opposed
to the state, in their official capacities, provided that his complaint (a) alleges an ongoing
violation of federal law and (b) seeks relief properly characterized as prospective")
(internal quotation marks and citation omitted).
Defendants contend that the Ex Parte Young exception does not apply because
"th[e] exception under Ex parte Young only applies where the official sued has 'some
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connection with the enforcement of the [allegedly unconstitutional act]."' Nassau &
Suffolk Cnty. Taxi Owners Ass 'n, Inc. v. State, 336 F. Supp. 3d 50, 68 (E.D.N.Y. 2018)
(quoting Kuck v. Danaher, 822 F. Supp. 2d 109, 141 (D. Conn. 2011)) (alterations in
original) (footnotes omitted). The State Defendants correctly point out that a state
official's general duty to enforce state laws is insufficient to establish the requisite
connection. See id. at 69 (observing that "courts in the Second Circuit have not extended
the exception under Ex parte Young on the basis that a state official has a general duty to
execute and enforce state laws") (internal quotation marks and citations omitted)~ see also
McCluskey v. Comm 'r a/Nassau Cnty. Dep't o/Soc. Servs., 2013 WL 4780954, at *8
(E.D.N.Y. Sept. 5, 2013) (holding that "[w]hile plaintiff has stated that the [state official]
is responsible for the overall operation of [the state agency], this allegation, standing
alone, is insufficient to demonstrate that the [state official] had a direct connection to, or
responsibility for, the alleged illegal action") (internal quotation marks, alteration, and
citation omitted).
In this case, Plaintiffs allege that Defendant French is "empowered to ' [s]upervise
and direct the execution of the laws relating to the public schools and ensure
compliance."' (Doc. 73 at 6, 116) (quoting 16 V.S.A. § 212). Plaintiffs further allege that
the State Defendants have a policy and practice of advising and directing the School
Defendants to deny tuition requests to attend religious schools. They claim that this
policy has coerced the School Defendants' decisions to deny their tuition requests at
religious schools, and they seek injunctive relief prohibiting the State Defendants from
enforcing this alleged policy. These facts, taken as true, are sufficient to allege "some
connection with the enforcement" of the policy beyond the State Defendants' general
duty to enforce state law. Ex Parte Young, 209 U.S. at 157. The State Defendants' motion
to dismiss based on sovereign immunity is therefore DENIED.
E.
Whether Plaintiffs Plausibly Plead A Free Exercise Claim.
The Free Exercise Clause "protects religious observers against unequal treatment
and subjects to the strictest scrutiny laws that target the religious for special disabilities
based on their religious status." Trinity Lutheran Church of Columbia, Inc. v. Comer
21
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(Trinity Lutheran), 137 S. Ct. 2012, 2019 (2017) (alteration, internal quotation marks,
and citation omitted). The State Defendants argue that Plaintiffs have failed to plausibly
allege that they exercise their religion by sending their children to a religious school or
that their religious exercise is being burdened by the State Defendants' actions.
"To have standing to pursue a claimed violation of the Free Exercise Clause, a
plaintiff must allege that her own 'particular religious freedoms are infringed."' Altman v.
Bedford Cent. Sch. Dist., 245 F. 3d 49, 71 (2d Cir. 2001) (quoting Sch. Dist. ofAbington
Twp., Pa. v. Schempp, 374 U.S. 203,224 n.9 (1963)); see also McGowan v. State of Md.,
366 U.S. 420,429 (1961) (holding that appellants had "no standing to raise" Free
Exercise claims where they "allege only economic injury to themselves; they do not
allege any infringement of their own religious freedoms[,]" and "the record is silent as to
what appellants' religious beliefs are"). "A party asserting a free exercise claim bears the
initial burden of establishing that the disputed conduct infringes upon his or her
sincerely-held religious beliefs." Jackson v. Boucaud, 2009 WL 6066799, at *5
(N.D.N.Y. Dec. 31, 2009).
In the FAC, the Buckleys and the Gallos allege that they are members of the
Catholic faith, and that they chose their respective religious schools at least in part
because "the school's religious worldview aligns with their sincerely held religious
beliefs." (Doc. 73 at 6, ,r,r 14-15.) The FAC further alleges that it is their "conviction[] to
educate their child in a religious school." Id. at 23, ,r 120. Because the Buckleys and
Gallos have "identifl:ied] [their] religion [and] explain[ed] the role of [the conduct at
issue] in [their] religion," the State Defendants' motion to dismiss their Free Exercise
claims is DENIED. Meadows v. Lesh, 2010 WL 3730105, at *3 (W.D.N.Y. Sept. 17,
2010).
With regard to the Valentes, however, Plaintiffs have not alleged that they send
their child to a Catholic school in furtherance of their religious beliefs. Rather, they allege
that they send their child to Mount St. Joseph Academy "because of its high-quality
academics, smaller class sizes, accessible sports programs, and its location near their
home." (Doc. 73 at 5, ,r 13.) These allegations will not suffice for a Free Exercise claim.
22
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See Harris v. McRae, 448 U.S. 297, 320 (1980) (holding that plaintiffs "lack[ed] standing
to challenge the Hyde Amendment on free exercise grounds because none alleged, much
less proved, that she sought an abortion under compulsion of religious belief') (citing
McGowan, 366 U.S. at 429); Boucaud, 2009 WL 6066799, at *6 n.12 (denying plaintiffs
free exercise claim where he "d[id] not specify his religion or the religious beliefs that he
claim[ed] were interfered with through defendants' conduct"). Because the Valentes fail
to "assert sufficient allegations necessary to establish that [their] claim is based upon a
sincerely held religious beliefl,]" the State Defendants' motion to dismiss the Valentes'
Free Exercise claims is GRANTED. Meadows, 2010 WL 3730105, at *3.
F.
Whether Plaintiffs Plausibly Plead an Establishment Clause Claim.
The State Defendants contend that Plaintiffs fail to establish an injury cognizable
under the Establishment Clause because Plaintiffs do not plausibly plead the State
Defendants' intent to establish a religion. Plaintiffs respond that Defendants'
establishment of a practice that is allegedly hostile to religion is sufficient.
"[T]he requirements for standing to challenge state action under the Establishment
Clause, unlike those relating to the Free Exercise Clause, do not include proof that
particular religious freedoms are infringed." Schempp, 374 U.S. at 224 n.9. Instead, the
Establishment Clause "is violated by the enactment of laws which establish an official
religion whether those laws operate directly to coerce non-observing individuals or not."
Id. at 222. "[S]tanding to assert an Establishment Clause claim may rest either on the
plaintiffs direct exposure to the challenged activity, or, in certain situations, on the
plaintiffs status as a taxpayer[.]" Altman, 245 F.3d at 72 (internal citation omitted).
In their FAC, Plaintiffs maintain that the State Defendants' alleged policy of
"denying tuition-eligible families religious options at schools that offer religious worship
or instruction or [are] otherwise deemed too religious" is "hostile toward and
disapproving of religion." (Doc. 73 at 25, ,r 132.) Plaintiffs further assert that "[i]t would
also be unconstitutionally intrusive for Defendants to try to tease out what aspects of a
religious school are religious and what aspects of a religious school are secular[,]"
although they do not allege that the State Defendants have made any such attempt. Id. at
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133. These claims sound in the Free Exercise Clause, not in the Establishment Clause.
"[A]lthough 'Establishment Clause cases ... have often stated the principle that the First
Amendment forbids an official purpose to disapprove of a particular religion or of
religion in general,' it is the 'Free Exercise Clause [that] is dispositive' when what is at
issue is not a 'government effort[] to benefit religion or particular religions' but rather 'an
attempt to disfavor ... religion[.]"' Carson ex rel O.C. v. Makin, 979 F.3d 21, 48 (1st
Cir. 2020) (quoting Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S.
520, 532 (1993)) (alterations in original).
To the extent that Plaintiffs allege that the State Defendants' policy supports
secularism, "[t]here is no relevant precedent for using [the Establishment Clause's]
negative prohibition as a basis for extending the right of a religiously affiliated group to
secure state subsidies." Strout v. Albanese, 178 F .3d 57, 64 (1st Cir. 1999) (emphasis in
original). To hold that the State Defendants' actions were violative of both the Free
Exercise Clause and the Establishment Clause would eliminate the "room for play in the
joints productive of a benevolent neutrality" that exists between "those accommodations
forbidden by the Establishment Clause and those mandated by the Free Exercise
Clause[.]" Young Advocs. for Fair Educ. v. Cuomo, 359 F. Supp. 3d 215,228 (E.D.N.Y.
2019) (quoting Walz v. Tax Comm 'n of City ofNY., 397 U.S. 664,669 (1970)). The State
Defendants' motion to dismiss Plaintiffs' Establishment Clause claims is therefore
GRANTED.
G.
Whether Plaintiffs Plausibly Plead a Free Speech Claim.
The State Defendants argue that Plaintiffs fail to state a Free Speech claim under
the First Amendment because they do not plausibly allege their conduct is expressive or
that the Town Tuition Program is a forum for speech. Plaintiffs do not dispute that the
Town Tuition Program is not a forum for speech but argue that their decision to send
their children to religious schools is constitutionally protected expressive conduct and
protected expressive association.
The First Amendment, applicable to the states through the Fourteenth
Amendment, prohibits laws "abridging the freedom of speech[.]" U.S. Const. amend. I.
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"It is well established that the First Amendment affords protection to symbolic or
expressive conduct as well as to actual speech." Church ofAm. Knights of the Ku Klux
Klan v. Kerik, 356 F.3d 197, 205 (2d Cir. 2004) (internal quotation marks and citation
omitted). However, "the fact that something is in some way communicative does not
automatically afford it constitutional protection." Zalewska v. Cnty. ofSullivan, New
York, 316 F.3d 314, 319 (2d Cir. 2003); see also United States v. O'Brien, 391 U.S. 367,
376 (1968) ("We cannot accept the view that an apparently limitless variety of conduct
can be labeled 'speech' whenever the person engaging in the conduct intends thereby to
express an idea.").
"In determining whether particular conduct is sufficiently expressive to implicate
the First Amendment, ... the test is whether '[a]n intent to convey a particularized
message was present, and [whether] the likelihood was great that the message would be
understood by those who viewed it."' Kerik, 356 F.3d at 205 (quoting Texas v. Johnson,
491 U.S. 397, 404 (1989)). "The party asserting that its conduct is expressive bears the
burden of demonstrating that the First Amendment applies, and that party must advance
more than a mere plausible contention that its conduct is expressive." Id. (internal
quotation marks, citation, and footnote omitted).
Plaintiffs contend in their briefing that their choice of school "communicates ...
( 1) the rejection of other educational philosophies or approaches, and (2) a commitment
to the specific missions of the schools selected[,]" however, they do not allege those same
facts in the FAC. (Doc. 55 at 18.) Moreover, activities are not "protected by the First
Amendment simply because the organization earnestly believes those activities are
important." United States v. Thompson, 896 F.3d 155, 165 (2d Cir. 2018) (footnote
omitted).
Because Plaintiffs fail to allege that their attendance at religiously affiliated
schools is intended to convey a particularized message, the FAC does not plausibly plead
that they have engaged in expressive conduct protected by the Free Speech Clause of the
First Amendment. See Zalewska, 316 F.3d at 319-20 (holding that plaintiffs wearing a
skirt was not speech because "the message that [she] intends to convey is not a specific,
25
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particularized message, but rather a broad statement of cultural values" and "it is difficult
to see how [plaintiffs] broad message would be readily understood by those viewing her
since no particularized communication can be divined simply from a woman wearing a
skirt").
Plaintiffs' expressive association claim fares no better because they have likewise
failed to allege that they associate with their chosen schools for any expressive purpose.
"[I]mplicit in the right to engage in activities protected by the First Amendment is 'a
corresponding right to associate with others in pursuit of a wide variety of political,
social, economic, educational, religious, and cultural ends."' Boy Scouts ofAm. v. Dale,
530 U.S. 640,647 (2000) (quoting Roberts v. United States Jaycees, 468 U.S. 609,622
(1984)). "To come within [the First Amendment's] ambit, a group must engage in some
form of expression, whether it be public or private." Id. at 648. "In other words, in order
for Plaintiffs to make out an expressive association claim, they must plead facts
demonstrating that Plaintiffs and [their schools] associated to advance" a particularized
message. Singer v. City ofNew York, 417 F. Supp. 3d 297, 318 (S.D.N.Y. 2019). They
have not done so. "When ... an individual engages in conduct that does not manifest an
'intent to convey a particularized message,' the [Free Speech Clause of the] First
Amendment does not come 'into play."' Thompson, 896 F .3 d at 164 (quoting Johnson,
491 U.S. at 404). For this reason, the State Defendants' motion to dismiss Plaintiffs' Free
Speech claims is GRANTED.
H.
Whether Plaintiffs Plausibly Plead an Equal Protection Claim.
"The Equal Protection Clause [of the Fourteenth Amendment] requires that the
government treat all similarly situated people alike." Harlen Assocs. v. Inc. Viii. of
Mineola, 273 F.3d 494,499 (2d Cir. 2001) (citing City of Cleburne v. Cleburne Living
Ctr., 473 U.S. 432,439 (1985). "To prove a violation of the Equal Protection Clause, ...
a plaintiff must demonstrate that he was treated differently than others similarly situated
26
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as a result of intentional or purposeful discrimination." Phillips v. Girdich, 408 F.3d 124,
129 (2d Cir. 2005).
"To maintain an equal protection claim, plaintiffs [are] required to show 'adverse
treatment of individuals compared with other similarly situated individuals [and that]
such selective treatment was based on impermissible considerations such as race,
religion, intent to inhibit or punish the exercise of constitutional rights, or malicious or
bad faith intent to injure a person."' Miner v. Clinton Cnty., NY., 541 F.3d 464, 474 (2d
Cir. 2008) (quoting Bizzarro v. Miranda, 394 F Jd 82, 86 (2d Cir. 2005)) (second
alteration in original).
"To state a claim for an equal protection violation, [plaintiffs] must allege that a
government actor intentionally discriminated against them" by showing either ( 1) "a law
or policy is discriminatory on its face" because it "expressly classifies persons on the
basis of' a protected classification; (2) "a law which is facially neutral ... is applied in a
discriminatory fashion"; or (3) "a facially neutral statute ... was motivated by
discriminatory animus and its application results in a discriminatory effect." Hayden v.
Cnty. ofNassau, 180 F .3d 42, 48 (2d Cir. 1999). The State Defendants contend that
Plaintiffs have not alleged that any government actor was aware of their religion or
intentionally discriminated against them based on their faith. In the FAC, Plaintiffs assert
that "[b]y denying tuition-eligible families religious educational options while allowing
private non-sectarian options, Defendants' policy and practice discriminates, facially and
as applied to Plaintiffs, on the basis of religion." (Doc. 73 at 27.)
A plaintiff may allege a prima facie intentional discrimination claim by
"plead[ing] the existence of a similarly situated group that was treated differently." Pyke
v. Cuomo, 258 F.3d 107, 109 (2d Cir. 2001) (citations and internal quotation marks
omitted). Although their allegations are relatively cursory, Plaintiffs have alleged that
Defendants have a policy of treating them disparately from parents who send their
children to non-religious independent schools. Because Plaintiffs plausibly plead that the
State Defendants' alleged policy is discriminatory on its face, the State Defendants'
motion to dismiss Plaintiffs' Equal Protection claims is DENIED.
27
Case 2:20-cv-00135-cr Document 91 Filed 08/16/21 Page 28 of 29
I.
Whether Plaintiffs Plausibly Plead a Substantive Due Process Claim.
To establish a substantive due process violation, a plaintiff must allege a valid
liberty or property interest and that the "defendants infringed that [] interest in an
arbitrary or irrational manner." Harlen, 273 F.3d at 503. It is well-established that parents
have a liberty interest in "direct[ing] the upbringing and education of children under their
control." Pierce v. Soc '.Y ofSisters of the Holy Names ofJesus and Mary, 268 U.S. 510,
534-35 (1925). The Second Circuit has recognized that Pierce established "a parental
right to send ... children to a particular private school rather than a public school."
Leebaert v. Harrington, 332 F.3d 134, 140 (2d Cir. 2003) (internal quotation marks
omitted) (alteration in original). However, "showing the existence (and even the
infringement) of a right is not sufficient to merit success on a substantive due process
claim; Plaintiffs must also show that Defendant infringed on that right in an arbitrary
manner." Ass 'n ofJewish Camp Operators v. Cuomo, 470 F. Supp. 3d 197, 226
(N.D.N.Y. 2020). This is because "[s]ubstantive due process protects against government
action that is arbitrary, conscience-shocking, or oppressive in a constitutional sense, but
not against government action that is 'incorrect or ill-advised."' Kaluczky v. City of White
Plains, 57 F.3d 202,211 (2d Cir. 1995) (quoting Lowrance v. Achtyl, 20 F.3d 529,537
(2d Cir. 1994)).
Plaintiffs' substantive due process claims cannot proceed because "what would
serve to raise [State Defendants'] actions beyond the wrongful to the unconscionable and
shocking are facts which, if proven, would constitute, in themselves, specific
constitutional violations." Velez v. Levy, 401 F.3d 75, 94 (2d Cir. 2005). "[W]here
another provision of the Constitution provides an explicit textual source of constitutional
protection, a court must assess a plaintiffs claims under that explicit provision and not
the more generalized notion of substantive due process." Kia P. v. McIntyre, 235 F.3d
749, 757-58 (2d Cir. 2000) (alteration in original) (internal quotation marks omitted).
Because Plaintiffs' substantive due process claims are "subsumed in [their] more
particularized allegations" of Free Exercise and Equal Protection violations, the State
Defendants' motion to dismiss Plaintiffs' substantive due process claims is GRANTED.
28
Case 2:20-cv-00135-cr Document 91 Filed 08/16/21 Page 29 of 29
Velez, 401 F.3d at 94; see also Albright v. Oliver, 510 U.S. 266,273 (1994) (observing
that "[w]here a particular Amendment provides an explicit textual source of
constitutional protection against a particular sort of government behavior, that
Amendment, not the more generalized notion of substantive due process, must be the
guide for analyzing these claims") (internal quotation marks omitted).
CONCLUSION
For the foregoing reasons, the court GRANTS IN PART and DENIES IN PART
the State Defendants' motion to dismiss (Doc. 42), and GRANTS the School Defendants'
motion to dismiss the Supervisory Union Defendants (Doc. 44).
SO ORDERED.
Dated at Burlington, in the District of Vermont, this
29
/~f'.day of August, 2021.
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