Mid Vermont Christian School et al v. Bouchey et al

Filing 68

ORDER: re 60 MOTION For Injunction Pending Appeal. The court will schedule a video hearing concerning the limited issue of Plaintiffs' participation in co-educational activities. Signed by Chief Judge Geoffrey W. Crawford on 7/15/2024. (sjl)

U.S. DiSTPiCT COURT
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UNITED STATES DISTRICT COURT
FOR THE
DISTRICT OF VERMONT
MID VERMONT CHRISTIAN SCHOOL,
on behalf of itself and its students and its
students' parents; A.G. and M.G., by and
through their parents and natural guardians,
Chris and Bethany Goodwin;
CHRISTOPHER GOODWIN, individually;
BETHANY GOODWIN,
Plaintiffs,

V.

ZOIE SAUNDERS, 1 in her official capacity
as Interim Secretary of the Vermont Agency
of Education; JENNIFER DECK
SAMUELSON, in her official capacity as
Chair of the Vermont State Board of
Education; CHRISTINE BOURNE, in her
official capacity as Windsor Southeast
Supervisory Union Superintendent;
HEARTLAND SCHOOL BOARD;
RANDALL GAWEL, in his official
capacity as Orange East Supervisory Union
Superintendent; WAITS RIVER VALLEY
(UNIFIED #36 ELEMENTARY) SCHOOL
BOARD; and JAY NICHOLS, in his
official capacity as the Executive Director
of The Vermont Principals' Association,
Defendants.

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Case No. 2:23-cv-652

Zoie Saunders succeeded Heather Bouchey as Interim Secretary of the Vermont Agency
of Education in April 2024. Interim Secretary Saunders is automatically substituted as a party
under Fed. R. Civ. P. 25(d).

ORDER ON MOTION FOR INJUNCTION PENDING APPEAL
(Doc. 60)
By order dated June 11, 2024, the court denied Plaintiffs' motion for a preliminary
injunction. (Doc. 57.) Plaintiffs have filed a notice of appeal. (Doc. 59.) They have also filed a
motion for an injunction pending appeal with a view towards renewing the motion before the
Second Circuit if it is not granted by this court. (Doc. 60.)
The court will not repeat the discussion leading to its conclusion that Plaintiffs are
unlikely to prevail on the merits of their request for injunctive relief. The issues raised in the
pending motion are the same as before. These include claims that the Vermont Principals'
Association ("VP A") improperly excluded the Mid Vermont Christian School from membership
because of its religious beliefs; that the discretionary decision-making of the VP A requires strict
scrutiny of its practices; and that the VPA was motivated by hostility towards Plaintiffs' religious
beliefs.
Plaintiffs raised these issues in their first motion for a preliminary injunction. (See Doc.
14.) The court sought to address these issues as completely as possible. The court focused on
the policy decision made by the state defendants to permit transgender students to play on the
team with which they identify. (See Doc. 57.) As Defendants see it, Vermont law requires the
inclusion of trans gender students on sports teams. Plaintiffs are candid in stating that they
cannot accept such a decision for reasons of religious conviction and will refuse to play against
an athletic team which they believe includes a transgender student.
The court has not held a trial in the case. But the evidence has been foreshadowed by the
parties' submissions. It appears unlikely that Plaintiffs will demonstrate that they are the victims
of prejudice against their religious beliefs. Rather, it is likely that following a trial, the court will
find that the state's educational policy of including of trans gender students on the team of their
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choice is neutral as to religion and applies to all schools seeking to participate in the VP A.
Similarly, it is likely that the evidence will demonstrate that the expulsion of Mid Vermont from
the VP A was not motivated by animus against their religious beliefs. Instead, the information
available to the court indicates that Mid Vermont's refusal to compete in the future against
schools whose teams include transgender students resulted in its expulsion.
The court recognizes one new issue, which is the ban on participation in state-wide
activities such as spelling bees and science fairs also sanctioned by the VP A. These events have
long been open to students of any gender, who compete on the same teams, often in tournaments
open to many schools. Plaintiffs state that they are willing to participate in these co-ed activities
with other schools even if a transgender student takes part.
The court raised this issue at the oral argument:
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Court: .. .I understand in the context of girls' basketball we have a live dispute. I
just don't understand why we have a dispute about Scholars' Bowl. And [the state
defendants] say it's because you haven't asked to participate, and you say that you
only want to participate in all or nothing? I'm not quite sure what you say about
the extracurriculars that aren't athletics.
Mr. Reed [Plaintiffs' counsel]: Yeah, your Honor. The reason we have a dispute
is because the VPA kicked the school entirely out of everything, so that's why it's
at issue here. It's not because we didn't seek to reapply to only participate in quiz
bowl or the spelling bee ....
Court: Do you want to do that, or no?
Mr. Reed: Pardon, your Honor.
The Court: Do you wish to do that?
Mr. Reed: Of course, yes.
The Court: Why not do it yesterday?
Mr. Reed: Well, your Honor, I think what is at issue here is not just a quiz bowl. I
mean, sure, that's part of it. What the VP A did, though, is expel us entirely.

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The Court: Got it. But Mr. Reed: But what is at issue here is that the school also would like to participate
in athletics subject to the accommodation we discussed.
The Court: Right.
Mr. Reed: And that's why we haven't reapplied, because it's futile to do so. That's
why we're in this court, your Honor. We're asking you to enjoin the VPA from
punishing the school for forfeiting such games.
The Court: Yes. I have my head around the basketball controversy, but it seems
to me you're kind of making a-what's the right word?-a [make-weight] issue or
a false issue about the other extracurriculars because you haven't asked to come in
and do those, and you must have students who are smart and eager and want to do
it and they're sitting on the sidelines while we all argue about basketball when they
could have done debate club all spring. It seems irresponsible.
Mr. Reed: Well, it's not really up to us, your Honor. Again, the VPA expelled the
school, and so we have been kicked out. We have been excluded. So it's not the
school's fault. It's the VPA's fault. And I understand your Honor's point: [w]ell,
we could reapply to only participate in quiz bowl.
The Court: Sure.
Mr. Reed: But, again, that's kind of futile because we want the whole thing. We
want to participate in athletics and academics.
(Transcript, Doc. 56 at 39--41.)
Ultimately, Plaintiffs' counsel stated that his clients would accept a partial order subject
to their right to continue to seek full admission to the VP A. (Id. at 43.)
Counsel for the state defendants expressed openness to a partial resolution.
Mr. Zakrzewski: We haven't received that application or request for them.
The Court: Okay.
Mr. Zakrzewski: Nor an assurance that they could participate in those [academic]
activities even with a trans child without, as they've termed it, propagating a lie
that's contrary to their religious beliefs. So anything that's submitted we will
review and act upon in due course. That's not a request that's been made either in
this litigation or outside the litigation thus far.
The Court: Right.
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Mr. Zakrzewski: So we haven't had the opportunity. Of course, your Honor has
noted, I don't have the authority to make that decision myself, but based on the way
this hearing has progressed, you can be certain I would put a lot of pressure on my
client to make a sound and not unduly delayed decision should such a request be
received.
(Id. at44.)

At the hearing, both sides appeared willing to allow Mid Vermont to participate in statewide co-educational activities and competitions. After the hearing, counsel for Mid Vermont
sent a letter requesting such an opportunity. The letter states that "the School's religious beliefs
do not prevent it from participating in co-educational activities where both boys and girls
participate." (Doc. 52-1 at 2.) The state defendants responded without directly addressing the
issue of co-educational activities. (See Doc. 53-1 at 2.) Mid Vermont replied that "your
response does not address the court's inquiry into allowing our client immediate access to all coed activities as the case progresses." (Doc. 54-1 at 2.) Mid Vermont requested that its second
letter serve as a request for an immediate injunction. Id. The state defendants responded with a
memorandum chiding Plaintiffs for engaging in the practice of "litigation by letter" and
questioning whether Plaintiffs were sincere in their commitment to participate in co-educational
activities with transgender students. (See generally Doc: 55.)
It seems likely to the court that the exclusion of Mid Vermont from activities such as
debate tournaments and science fairs in which boys and girls compete on the same team is
unnecessary and excessive. Since Mid Vermont has committed to attending these events even if
a team member from another school is transgender, there is no reason to exclude the school.
There also appears to be sound constitutional authority in favor of including Mid Vermont in
state-sponsored activities in the line of cases starting with Trinity Lutheran Church of Columbia,
Inc. v. Comer, 582 U.S. 499 (2017).

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The court anticipated that the parties would stipulate to the partial relief outlined above.
That has not happened. The court will not issue its final ruling on the pending motion for
injunctive relief until this issue is resolved. The court will schedule a hearing at which counsel
can explain their clients' positions concerning co-educational activities as well as whether an
order granting partial relief is appropriate. Due to the difficulties of travel and summer
schedules, the court is willing to conduct the hearing by video.
One final point concerns the pending motions to dismiss. (Docs. 28, 39, 40.) Since the
issue of injunctive relief is going up on appeal, the court will defer any ruling on these motions
until the appeal is resolved and the case is returned to this court.
Conclusion
The court will schedule a video hearing concerning the limited issue of Plaintiffs'
participation in co-educational activities.
Dated at Burlington, in the District of Vermont, this 15 th day of July, 2024.

Isl Geoffrey W. Crawford
Geoffrey W. Crawford, Chief Judge
United States District Court

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