A.H. v. French

21-87

A.H. v. French

In the

United States Court of Appeals

FOR THE SECOND CIRCUIT

AUGUST TERM 2020

No. 21-87

IN RE A.H.

A.H., BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, JAMES

HESTER AND DARLENE HESTER, JAMES HESTER, INDIVIDUALLY, DARLENE

HESTER, INDIVIDUALLY, ROMAN CATHOLIC DIOCESE OF BURLINGTON,

VERMONT, C.R., BY AND THROUGH HER PARENTS AND NATURAL

GUARDIANS, GILLES RAINVILLE AND ELKE RAINVILLE, GILLES

RAINVILLE, INDIVIDUALLY, ELKE RAINVILLE, INDIVIDUALLY, E.R., BY

AND THROUGH HER PARENTS AND NATURAL GUARDIANS, CHAD ROSS

AND ANGELA ROSS, CHAD ROSS, INDIVIDUALLY, ANGELA ROSS,

INDIVIDUALLY, A.F., BY AND THROUGH HER PARENTS AND NATURAL

GUARDIANS, DANIEL FOLEY AND JULIANE FOLEY, JULIANE FOLEY,

INDIVIDUALLY, DANIEL FOLEY, INDIVIDUALLY,

Petitioners,

v.

DANIEL M. FRENCH, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE

VERMONT AGENCY OF EDUCATION, MICHAEL CLARK, IN HIS OFFICIAL

CAPACITY AS GRAND ISLE SUPERVISORY UNION SUPERINTENDENT,

SOUTH HERO BOARD OF SCHOOL DIRECTORS, CHAMPLAIN ISLANDS

UNIFIED UNION SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS,

JAMES TAGER, IN HIS OFFICIAL CAPACITY AS FRANKLIN WEST

SUPERVISORY UNION SUPERINTENDENT, GEORGIA BOARD OF SCHOOL

DIRECTORS,

Respondents. *

* The Clerk of Court is directed to amend the caption as set forth above.

On Petition for a Writ of Mandamus

SUBMITTED: FEBRUARY 2, 2021

DECIDED: FEBRUARY 3, 2021

OPINION ISSUED: JUNE 2, 2021

Before: JACOBS, SULLIVAN, AND MENASHI, Circuit Judges.

In Vermont, some school districts do not operate public high

schools. Pursuant to Vermont’s Town Tuition Program (“TTP”), these

“sending districts” pay tuition to independent schools on behalf of

high-school-aged students residing in the districts. The statutory

provisions governing the program provide that each student is

entitled to select the independent school of his or her choice. The

petitioners in this case applied to their respective sending districts for

tuition funding under the TTP, but their requests were denied.

The petitioners brought suit seeking injunctive relief, claiming

that the denials violated their rights to the free exercise of religion

under the First Amendment. On a motion for a preliminary

injunction, the district court found that the school districts—

endeavoring to comply with a state constitutional provision—denied

the petitioners’ funding requests solely because of the religious status

of the petitioners’ chosen school. Following Supreme Court

precedent, the district court ruled that the exclusion of the petitioners

from the TTP violated the First Amendment, and the district court

granted a preliminary injunction in the petitioners’ favor. The scope

of that injunction, however, was limited. The district court refused to

enjoin the school districts from maintaining the funding denials it had

2

held unconstitutional. Rather, in light of the respondents’ desire to

develop new criteria for TTP eligibility that would satisfy the state

constitution, the district court merely enjoined the school districts

from continuing to exclude the petitioners from the TTP based solely

on the religious status of the petitioners’ chosen school.

The petitioners appealed that decision and moved for an

emergency injunction pending appeal that would grant the relief the

district court omitted from its preliminary injunction. We construed

this motion as a petition for a writ of mandamus directing the district

court to amend its preliminary injunction. Because the petitioners

clearly had a right to the relief they requested and mandamus was

justified to enable them to obtain that relief, we GRANTED the

petition by an order issued on February 3, 2021, which noted that an

opinion would be forthcoming. This opinion explains the reasoning

for that order.

Judge Menashi also files a concurring opinion.

David A. Cortman, Alliance Defending Freedom,

Lawrenceville, GA (John J. Bursch and Paul Daniel

Schmitt, Alliance Defending Freedom, Washington, DC;

Ryan J. Tucker, Alliance Defending Freedom, Scottsdale,

AZ; and Thomas E. McCormick, McCormick, Fitzpatrick,

Kasper & Burchard, P.C., Burlington, VT, on the brief), for

Petitioners.

Jon T. Alexander, Assistant Attorney General (Benjamin

D. Battles, Solicitor General, and Rachel E. Smith,

Assistant Attorney General, on the brief), Office of the

Attorney General, Montpelier, VT, for Thomas J. Donovan

3

Jr., Attorney General of Vermont, for Respondent Daniel M.

French.

William F. Ellis (Kevin J. Coyle, on the brief), McNeil,

Leddy & Sheahan, P.C., Burlington, VT, for Respondents

Michael Clark, South Hero Board of School Directors,

Champlain Islands Unified Union School District Board of

School Directors, James Tager, and Georgia Board of School

Directors.

MENASHI, Circuit Judge:

Four years ago, the Supreme Court reminded states that it “has

repeatedly confirmed that denying a generally available benefit solely

on account of religious identity imposes a penalty on the free exercise

of religion that can be justified only by a state interest of the highest

order.” Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct.

2012, 2019 (2017) (internal quotation marks omitted). Last June, the

Court clarified that this rule does not allow a state to apply a state

constitutional prohibition on aid to religion that would “bar[]

religious schools from public benefits solely because of the religious

character of the schools.” Espinoza v. Mont. Dep't of Revenue, 140 S. Ct.

2246, 2255 (2020). The Court emphasized that “[s]tatus-based

discrimination remains status based even if one of its goals or effects

is preventing religious organizations from putting aid to religious

uses” and that a state cannot justify discrimination against religious

schools and students by invoking an “interest in separating church

and State more fiercely than the Federal Constitution.” Id. at 2256,

2260 (internal quotation marks omitted).

4

The officials who administer Vermont’s Town Tuition Program

(“TTP”)—respondents here—nevertheless continued to discriminate

against religious schools and students in violation of the First

Amendment. When a student resides in a school district that does not

maintain a public high school, the TTP entitles that student to a tuition

payment to attend the independent high school of his or her choice.

The individual petitioners in this case, who reside in such districts,

applied for TTP payments to attend Rice Memorial High School

(“Rice”). The school districts denied their requests on the ground that

Rice is a religiously affiliated school. According to the school districts,

the petitioners could receive tuition payments under the TTP only if

they chose to attend a secular school instead.

The petitioners brought suit challenging the discriminatory

denials and sought a preliminary injunction that would end their

exclusion from the TTP. Unsurprisingly, the district court concluded

that the petitioners had satisfied the necessary elements and were

entitled to a preliminary injunction—and the district court entered

such an injunction. A.H. ex rel. Hester v. French (French I), No. 2:20-CV-

151, 2021 WL 62301, at *8, *10-12 (D. Vt. Jan. 7, 2021). “The scope of

[the] injunctive relief, however,” was “limited.” Id. at *12. The district

court enjoined the school districts only from excluding the petitioners

based on the precise rationale on which the districts had previously

relied; the court declined to mandate that the districts allow the

petitioners to participate in the TTP until the case was resolved. Id. at

*13. The district court reasoned that it would be improper to provide

the full relief the petitioners sought before the respondents had an

opportunity to develop new criteria for TTP eligibility that would

satisfy Vermont’s constitution, which the Vermont Supreme Court

has interpreted as prohibiting public funding for “religious

5

education.” Id. at *3, *12-13; see Chittenden Town Sch. Dist. v. Dep’t of

Educ., 738 A.2d 539, 562 (Vt. 1999). In the meantime, the school

districts could, and did, continue to exclude the petitioners from the

TTP as long as they sought to attend Rice.

The district court so ruled even though in the two decades since

the Vermont Supreme Court’s decision, neither the school districts

nor Vermont’s Agency of Education had ever developed any

alternative criteria for TTP eligibility. And Rice therefore never had

an opportunity to comply with any such criteria. Given the limited

scope of the district court’s injunction, the petitioners faced a new and

additional obstacle to accessing TTP benefits before the new school

semester began—an obstacle that resulted from the school districts’

and the state’s prior decision to rely on unconstitutional status-based

discrimination rather than attempt to develop narrower criteria in the

first place.

The petitioners appealed the district court’s decision to limit the

scope of its injunction and moved for an emergency injunction

pending appeal that would prohibit the school districts from

continuing to deny their TTP funding requests. We construed this

motion as a petition for a writ of mandamus directing the district

court to amend its preliminary injunction. On February 3, 2021, we

granted the petition, ordering the district court “to amend its

preliminary injunction to prohibit the [respondents] from continuing

to deny the [petitioners’] requests for tuition reimbursement under

the TTP, regardless of [Rice’s] religious affiliation or activities.” Order

Granting Petition for Writ of Mandamus, Feb. 3, 2021 (ECF doc. 59)

[hereinafter Mandamus Order]. The order noted that an opinion would

be forthcoming. Id. This opinion explains the reasons for that order.

6

BACKGROUND

This case involves the intersection of the TTP, Vermont’s state

constitution as interpreted by its highest court, and the school

districts’ and the district court’s assessment of Rice.

I

We recently had occasion to describe the TTP in a similar case

involving some of the same parties to this litigation:

[T]he Town Tuition Program is quite simple: If a school

district provides elementary education, it is required to

provide secondary education. While school districts have

a number of options in meeting this obligation, they

principally do so in one of two ways: (1) by maintaining

a public high school within the district, or (2) by using

public funds to pay tuition to an approved public or

independent high school within or outside the district, to

be selected by the parents or guardians of the student.

Most of Vermont’s school districts … meet their

obligations under the Town Tuition Program by

maintaining public high schools. … Some school districts

[commonly described as “Sending Districts”] …

however, decline to maintain their own public high

schools; they instead use public funds to pay for their

students to attend approved independent schools or

public schools in other districts.

A.H. ex rel. Hester v. French (French II), 985 F.3d 165, 171 (2d Cir. 2021)

(internal quotation marks omitted) (citing 16 V.S.A. § 822). The TTP is

administered by the school boards of the individual school districts,

16 V.S.A. § 822(c)(2), with the ultimate oversight authority in

individual cases vested in the State Board of Education, id. § 828.

Vermont’s Agency of Education (“AOE”) provides guidance

7

regarding how the school districts should discharge their

responsibilities under the TTP. See French II, 985 F.3d at 172; French I,

2021 WL 62301, at *6 n.6. 1

Sending Districts pay tuition to an “approved independent

high school … to be selected by the parents or guardians of the

student.” 16 V.S.A. § 822(a)(1). An independent school is “approved”

if it meets the state’s detailed requirements and educational

standards. Id. §§ 166(b), 906. A religious as well as a secular school

may be “approved,” see id., and “[n]othing in the legislation

establishing the Town Tuition Program prohibits Sending Districts

from paying tuition to religious schools,” French II, 985 F.3d at 172.

II

In May 1996, the Chittenden Town School Board approved TTP

funding requests for students attending Mount Saint Joseph

Academy (“MSJ”), a religious high school. Chittenden Town, 738 A.2d

at 542-43. In response, the Commissioner of Vermont’s Department of

Education—the predecessor official to the Secretary of the AOE—cut

1 The State Board of Education and the Agency of Education are distinct

bodies with different but overlapping roles. Compare 16 V.S.A. § 164 (setting

the general powers and duties of the State Board), with id. § 212 (delineating

the duties of the Secretary of Education), and id. § 11(a)(14) (“‘Agency of

Education’ means the Secretary and staff necessary to carry out the

functions of the Agency.”). Among his other duties, the Secretary of

Education must “execute th[e] policies adopted by the State Board,”

“[s]upervise and direct the execution of the laws relating to the public

schools and ensure compliance,” and “[s]upervise the expenditure and

distribution of all money appropriated by the State … for public schools.”

Id. § 212(5)-(6). The Secretary is also a nonvoting member of the State Board.

Id. § 161. Before 2013, the Secretary, then designated the “Commissioner,”

was an employee of the State Board. 16 V.S.A. § 211 (2012) (repealed 2013).

8

off all funding to the Chittenden Town School District. Id. at 543.

Parents and the school district sued, and the case made its way to the

Vermont Supreme Court. The court ruled that the school district’s

tuition payments to MSJ violated the “Compelled Support Clause” of

Vermont’s constitution. Id. at 541-42. That clause provides that “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. I, art. 3.

The court interpreted the language proscribing “compelled …

support [of] any place of worship” to prohibit any public funding not

only of worship services but also of “religious education.” Id. at 547,

562. The court concluded that the Chittenden Town School District

violated the state constitution by paying tuition to MSJ without

“restrictions that [would] prevent the use of [that] public money to

fund religious education.” Id. at 562.

The court noted, however, that the Compelled Support Clause

does not necessarily demand that “children who attend religious

schools may not receive public educational funding.” Id. at 563.

Rather, the Compelled Support Clause requires only that “public

funds may not pay for religious worship,” which the court construed

to include “religious education.” Id. at 562-63. Therefore, the court

said, Vermont school districts may fund tuition at a religious school

if there are “adequate safeguards against the use of [the public] funds

for religious [education].” Id. at 542. Yet the court “express[ed] no

opinion on how the State of Vermont can or should … craft a

complying tuition-payment scheme.” Id. at 563.

“[I]n the more than twenty years since Chittenden Town was

decided, Vermont has neither amended the Town Tuition Program

nor identified adequate safeguards to ensure that Sending Districts

9

do not use public funds to support worship at religious schools.”

French II, 985 F.3d at 172. Rather, the AOE and certain school districts

have apparently applied the Chittenden Town decision by adopting

either a blanket ban on funding tuition at all religious schools, see id.;

French I, 2021 WL 62301, at *6 n.6, or a more limited—but similarly

status-based—ban on funding tuition at schools deemed to be

“pervasively sectarian” or “pervasively religious,” App’x 223-26,

245; 2 see French II, 985 F.3d at 185-86 (Menashi, J., concurring). 3

III

The Supreme Court has made clear that the prevailing practice

in Vermont—maintaining a policy of excluding religious schools from

the TTP—is unconstitutional. 4 Even so, the AOE and the respondent

school districts did not alter course. When the individual petitioners

applied to their local school districts for tuition payments for Rice, an

“approved independent school” under Vermont law, they were

rejected on the ground that Rice is a “religious” or “parochial” school.

2 Citations to “App’x” refer to the appendix the petitioners submitted with

their petition.

3 While “some Sending Districts have over the past twenty years used

public funds to pay tuition for eighty students attending religious schools,”

the “record does not show … whether these Sending Districts have

extended funding in violation of Chittenden Town or pursuant to the

presence of safeguards.” French II, 985 F.3d at 172-73.

4 See Espinoza, 140 S. Ct. at 2255-57 (holding that, unless it can satisfy the

“strictest scrutiny,” a state may not “bar[] religious schools from public

benefits solely because of the religious character of the schools” even if the

state’s “goal” is to “ensur[e] that government aid does not end up being

used for ‘sectarian education’ or ‘religious education’ … particularly [at]

schools that believe faith should permeate everything they do”)

(alterations, emphasis, and internal quotation marks omitted).

10

App’x 85-98; see also French I, 2021 WL 62301, at *4-5. Furthermore, in

response to a funding request from another student, an AOE official

told a school district employee that the AOE’s “legal team” had

determined that “there is no change in a district’s ability to pay tuition

to a parochial school” after the Supreme Court’s decision in Espinoza.

App’x 119-20.

The petitioners brought suit challenging their TTP funding

denials and sought a preliminary injunction ending their exclusion

from the TTP during the pendency of the case. The district court ruled

on the petitioners’ motion for a preliminary injunction on January 7,

2021, and concluded that the petitioners were entitled to a

preliminary injunction. The petitioners demonstrated a substantial

likelihood of success on the merits of their claim that the school

districts violated their rights to the free exercise of religion under the

First Amendment. French I, 2021 WL 62301, at *10-12. They established

that they would suffer irreparable harm in the form of an ongoing

“loss of First Amendment freedoms.” Id. at *8 (quoting Elrod v. Burns,

427 U.S. 347, 373 (1976) (plurality opinion)). And the balance of the

equites and the public interest favored “securing [the petitioners’]

First Amendment rights.” Id. at *12 (quoting N.Y. Progress & Prot. PAC

v. Walsh, 733 F.3d 483, 488 (2d Cir. 2013)).

These conclusions would normally entitle a plaintiff to a

preliminary injunction that would “prevent … any further

perpetration of injury” pending an adjudication on the merits. Benson

Hotel Corp. v. Woods, 168 F.2d 694, 696 (8th Cir. 1948); see Winter v.

NRDC, 555 U.S. 7, 20 (2008). The district court, however, refused to

“order the School Defendants to honor Plaintiffs’ [Rice] tuition

requests.” French I, 2021 WL 62301, at *12. The district court decided

that the school districts should have an opportunity to pursue

11

compliance with Chittenden Town by developing restrictions on

religious uses of TTP funding—buttressed by “adequate

safeguards”—that might permit the school districts to fund Rice

tuition, at least partially, once those safeguards are in place. Id. at *11-

13. 5 The district court therefore issued a preliminary injunction

preventing the school districts “from denying [the petitioners’]

applications for Town Tuition Program reimbursement solely on the

basis of [Rice’s] religious status” but allowed the districts to develop

new use-based restrictions on TTP funds. Id. at *13. Following the

district court’s issuance of the preliminary injunction, the school

districts could, and did, continue to exclude the petitioners from the

TTP.

IV

On January 15, 2021, eight days after the district court issued its

decision, the petitioners appealed to this court and moved for an

emergency injunction pending appeal. The petitioners explained that

the upcoming semester at Rice was set to begin on January 25 and the

school districts, consistent with the district court’s decision,

continued to exclude the petitioners from the TTP while working to

fashion adequate safeguards. On January 14, for the first time in over

5 In Espinoza, the Supreme Court declined to address whether

“discrimination against religious uses of government aid” would be treated

the same as “discriminat[ion] based on religious status.” 140 S. Ct. at 2257

(emphasis added). At the same time, the Court cautioned that nothing in its

opinion was “meant to suggest ... that some lesser degree of scrutiny applies

to discrimination against religious uses of government aid,” and that

“[s]ome Members of the Court, moreover, have questioned whether there

is a meaningful distinction between discrimination based on use or conduct

and that based on status.” Id.

12

twenty years, the AOE issued guidance to school districts regarding

how to fashion and implement adequate safeguards, and the school

districts claimed to need additional time to “digest” that guidance.

App’x 378. With the semester starting in a matter of days, the

petitioners asked this court to enter an emergency injunction

requiring the school districts to end the petitioners’ exclusion from

the TTP.

On January 22, when the briefing on this motion was

complete—and the last business day before the new semester began—

an applications judge granted the motion temporarily, pending a

decision of the court. See Motion Order, Jan. 22, 2021 (ECF doc. 40).

On February 3, we construed the motion as a petition for mandamus

and ordered the district court “to amend its preliminary injunction to

prohibit the [respondents] from continuing to deny the [petitioners’]

requests for tuition reimbursement under the TTP, regardless of

[Rice’s] religious affiliation or activities.” Mandamus Order.

DISCUSSION

Though the petitioners sought relief in the form of an

emergency injunction pending appeal, their request is better

understood as a petition for a writ of mandamus. In this case, the

district court decided all the relevant legal questions in the

petitioners’ favor, holding that they had a substantial likelihood of

success on the merits, that they would suffer irreparable harm in the

absence of injunctive relief, and that the balance of the equities and

the public interest favored securing their First Amendment rights.

The objection to the district court’s judgment is not that it erred on the

merits but that it failed to follow its own conclusions and properly

remedy the constitutional injury it identified. Therefore, as we have

13

done before, we construed the petitioners’ motion as a petition for a

writ of mandamus ordering the district court to amend its order and

to provide the requested relief. See, e.g., Hong Mai Sa v. Doe, 406 F.3d

155, 158-59 (2d Cir. 2005); Stein v. KPMG, LLP, 486 F.3d 753, 758-59 (2d

Cir. 2007).

The remedy of mandamus is “traditionally … used in the

federal courts only to ‘confine an inferior court to a lawful exercise of

its prescribed jurisdiction or to compel it to exercise its authority

when it is its duty to do so.’” Will v. United States, 389 U.S. 90, 95 (1967)

(quoting Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 26 (1943)). 6 We

may issue a writ of mandamus only if: (1) the petitioners have “no

other adequate means to attain the relief [they] desire[],” (2) the

petitioners’ “right to issuance of the writ is clear and indisputable,”

and (3) we are “satisfied that the writ is appropriate under the

circumstances.” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 380-81 (2004)

(internal quotation marks omitted); see also United States v. Manzano

(In re United States), 945 F.3d 616, 623 (2d Cir. 2019). For the reasons

described below, these criteria are met in this case.

6 In this traditional formulation, the term “jurisdiction” is not limited to its

“modern, technical [meaning], ‘i.e., the statutory or constitutional power to

adjudicate the case.’” Paul R. Gugliuzza, The New Federal Circuit Mandamus,

45 Ind. L. Rev. 343, 355 (2012) (alteration omitted) (quoting Steel Co. v.

Citizens for a Better Env’t, 523 U.S. 83, 89 (1998)). “Rather, the [Supreme]

Court’s rule referred to a ‘more flexible notion of “power.”’” Id. (quoting

Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.

L. Rev. 595, 599 (1973)). In the mandamus context, “[i]f a district court ‘took

some definable action it was not empowered to take or refused to take some

definable action that was clearly required,’ the error was considered

‘jurisdictional,’ and mandamus would correct it.” Id. (alterations omitted)

(quoting Supervisory and Advisory Mandamus, supra).

14

I

The petitioners here have “no other adequate means to attain

the relief [they] desire[].” Cheney, 542 U.S. at 380. For starters, “the

district court has … foreclosed the relief” they request. Manzano, 945

F.3d at 623 (citing Kerr v. U.S. Dist. Ct., 426 U.S. 394, 404-06 (1976)).

The petitioners seek to participate in the TTP during the current

school semester. Less than three weeks before the semester started,

the district court refused to enjoin the school districts from continuing

to exclude the petitioners from the TTP. Instead, it allowed the school

districts to maintain the exclusion while the districts took time to craft

“adequate safeguards,” something no official body in the State of

Vermont had ever attempted to do before. The district court thus

authorized the school districts to exclude the petitioners from the TTP

for an unspecified amount of time—extending into the upcoming

semester—and thereby foreclosed the petitioners from obtaining the

relief they now seek.

Moreover, the petitioners cannot adequately obtain the relief

they seek “through the regular appeals process.” Id. (citing Cheney,

542 U.S. at 380-81). Writs of mandamus generally “cannot be used as

substitutes for appeals, even though hardship may result from

delay,” but “special circumstances” justify the writ here. Bankers Life

& Cas. Co. v. Holland, 346 U.S. 379, 383 (1953) (internal citations

omitted); accord Schlagenhauf v. Holder, 379 U.S. 104, 110-11 (1964).

When a petitioner faces significant “irreversible, non-monetary

harm” if forced to wait for an appeal to run its course, mandamus

may issue to prevent that harm. In re Depuy Orthopaedics, Inc., 870 F.3d

345, 353 (5th Cir. 2017). To determine whether the harm caused by a

delay is significant enough to justify mandamus relief, we give

consideration “to the severity and extent of this damage, and in

15

particular to whether a petitioner has lost precious constitutional

rights.” In re Halkin, 598 F.2d 176, 198 (D.C. Cir. 1979) (footnote

omitted), abrogated on other grounds by Seattle Times Co. v. Rhinehart,

467 U.S. 20 (1984); see also Beacon Theatres, Inc. v. Westover, 359 U.S. 500,

511 & n.20 (1959) (approving mandamus to remedy a district court’s

ruling that “improperly denie[s]” the petitioner’s right to a jury trial);

U.S. Alkali Exp. Ass’n v. United States, 325 U.S. 196, 204 (1945) (issuing

an extraordinary writ because of “[t]he hardship imposed on

petitioners by a long postponed appellate review, coupled with the

attendant infringement of [an] asserted Congressional policy”).

In this case, mandamus is the only adequate remedy because

the “district court’s [order] … has caused and is continuing to cause

irreparable harm to [the petitioners’] First Amendment rights.” Pfizer

Inc. v. Giles (In re Asbestos Sch. Litig.), 46 F.3d 1284, 1286 (3d Cir. 1994)

(Alito, J.); id. at 1294-95 (holding that the petitioner lacked any “other

adequate means to obtain relief” because “[f]ailure to issue a writ [of

mandamus] … would subject [the petitioner] to a continuing

impairment of its First Amendment freedoms” as a result of the

district court’s order); see also Bridge C.A.T. Scan Assocs. v. Technicare

Corp., 710 F.2d 940, 944 (2d Cir. 1983) (“Entry of an order that would

constitute a prior restraint on speech is an appropriate subject for a

mandamus petition.”). Without immediate access to the TTP pending

the resolution of their case at trial, the petitioners will remain

deprived of their constitutional right to the free exercise of religion.

The petitioners carried their burden to satisfy every requirement for

the issuance of a preliminary injunction providing the relief they

requested, and yet the district court failed to “exercise its authority”

to remedy the petitioners’ injury even though it was the district

court’s “duty to do so.” Roche, 319 U.S. at 26.

16

Furthermore, the unjustifiably limited scope of the district

court’s preliminary injunction effectively ensured that two petitioners

would lose the ability to attend Rice this semester. Those petitioners,

C.R. and E.R., cannot afford to attend Rice without access to TTP

funding. They will therefore suffer an additional irreversible injury if

they are forced to wait for the “regular appeals process” to run its

course. Manzano, 945 F.3d at 623. Under these circumstances,

“waiting” for the adjudication of an appeal “can hardly be described

as an ‘adequate means’ of relief eliminating the need for mandamus.”

Stein, 486 F.3d at 762 (quoting Cheney, 542 U.S. at 380).

II

The petitioners’ “right to issuance of the writ is clear and

indisputable.” Cheney, 542 U.S. at 381 (internal quotation marks

omitted). In circumscribing its preliminary injunction, the district

court clearly committed an “abuse of its discretion … [by] render[ing]

a decision that cannot be located within the range of permissible

decisions.” Manzano, 945 F.3d at 625 (quoting Linde v. Arab Bank, PLC,

706 F.3d 92, 107 (2d Cir. 2013)).

Having concluded that the petitioners suffered status-based

discrimination when the school districts denied their TTP funding

requests, the district court was required to provide a remedy that

would “restore the victims of discriminatory conduct to the position

they would have occupied in the absence of such conduct.” Milliken

v. Bradley, 418 U.S. 717, 746 (1974). The district court’s remedy,

however, allowed the petitioners’ constitutional injury to continue

unabated. No party disputes that the school districts would have

granted the petitioners’ funding requests for the past semester and for

the current semester if Rice were not religiously affiliated. Therefore,

17

absent the school districts’ status-based discrimination, the

petitioners would have had this semester’s tuition covered by the

TTP. The district court’s preliminary injunction should have provided

that relief.

Instead, the district court accommodated the school districts’

desire to comply with Chittenden Town. One might interpret

Chittenden Town as requiring only a use-based restriction on TTP

funds, but the school districts and the AOE have, for decades, applied

Chittenden Town through status-based exclusion of all religious or

pervasively sectarian schools from the TTP. And the school districts

maintained this discriminatory practice even after the Supreme

Court’s ruling in Espinoza. 7

7 In his opposition to this petition, French argues that much of the Supreme

Court’s opinion in Espinoza is not relevant to Vermont’s administration of

the TTP. French stresses that the Supreme Court “did not undertake to

definitively examine or characterize historic school funding practices

specific to Vermont” and that Vermont’s administration of the TTP is

guided by its highest court’s interpretation of a state constitutional

provision that dates to the Founding Era. Appellee Daniel M. French’s

Response to Appellants’ Emergency Motion for Injunction Pending Appeal

Under Fed. R. App. P. 8, at 12-15. We do not believe that the Free Exercise

Clause of the U.S. Constitution provides less protection against religious

discrimination in Vermont than it does in Montana or that Vermont has a

greater interest in refusing to fund religious education than Montana does.

The Supreme Court’s decision in Espinoza applies to all states. Moreover,

French offers no evidence for the proposition that Vermont—uniquely

among the states—has a “historic and substantial tradition” of refusing to

fund religious education in the context of programs such as the TTP.

Espinoza, 140 S. Ct. at 2258 (internal quotation marks omitted). He relies

exclusively on Chittenden Town, which described a historic tradition in

Vermont of avoiding only “public support of churches and ministers.”

Chittenden Town, 738 A.2d at 553.

18

Considering this background, the district court was wrong to

allow the school districts to continue to withhold TTP funds from the

petitioners while the districts developed new restrictions and

safeguards. Not only did this decision ensure that the petitioners

would continue to be denied access to generally available public

benefits for an indefinite period of time; it also subjected the

petitioners to an additional burden resulting from the school districts’

prior status-based discrimination. Due to the district court’s

circumscribed preliminary injunction, the petitioners’ tuition

payments would be delayed while the school districts developed new

use-based restrictions and then further delayed while Rice figured out

how to comply with the yet-to-be-developed restrictions. Rather than

“prevent … any further perpetration of injury” pending an

adjudication on the merits, Benson, 168 F.2d at 696, the district court

ensured that the petitioners would remain injured by the school

districts’ prior unconstitutional discrimination. That decision “cannot

be located within the range of permissible decisions.” Manzano, 945

F.3d at 625.

III

Finally, we are “satisfied that the writ is appropriate under the

circumstances.” Cheney, 542 U.S. at 381. The petitioners have been

deprived of a public benefit as a result of the state’s and the school

districts’ decades-long policy of unconstitutional religious

discrimination. The AOE and the school districts maintained this

policy even after the Supreme Court squarely held that such

discrimination violates the Free Exercise Clause. In these

circumstances, the respondents’ desire to adhere to Chittenden Town

must give way to the petitioners’ entitlement to be restored to the

position they would have occupied had the government not violated

19

their rights under the First Amendment to the U.S. Constitution. See

U.S. Const. art. VI, cl. 2 (providing that the U.S. Constitution “shall be

the supreme Law of the Land; and the Judges in every State shall be

bound thereby, any Thing in the Constitution or Laws of any State to

the Contrary notwithstanding”).

***

For these reasons, we granted the petition for a writ of

mandamus. At this point, the individual petitioners are entitled to

TTP funding to the same extent as parents who choose secular schools

for their children, regardless of Rice’s religious affiliation or activities.

In the interest of judicial economy, any further appeals shall be

referred to this panel. See De La Rosa v. Holder, 598 F.3d 103, 105 (2d

Cir. 2010); Philip Morris Inc. v. Nat'l Asbestos Workers Med. Fund, 214

F.3d 132, 135-36 (2d Cir. 2000). 8

8 We also now deny the petitioners’ and the school districts’ motions to

supplement the record, filed on February 3 and 5, 2021. The motions contain

evidence of measures the AOE and the school districts took to implement

adequate safeguards after the district court issued its opinion. These measures,

which the petitioners’ motion brought to our attention before we issued our

order, did not impact our decision or cause us to reconsider it. We also deny

French’s motion to supplement the record, filed on February 17, 2021.

20

21-87

A.H. v. French

MENASHI, Circuit Judge, concurring:

As the court’s opinion explains, the district court failed to

provide the petitioners with the relief to which they were entitled, and

we therefore granted mandamus. I write separately to note two

additional reasons why mandamus was appropriate.

I

First, the district court denied relief to the petitioners based on

its own determination that religion so pervasively affected the

mission and curriculum at Rice Memorial High School (“Rice”) that

the school districts were justified in worrying that funding such a

school would violate the Vermont constitution. A.H. ex rel. Hester v.

French (French I), No. 2:20-CV-151, 2021 WL 62301, at *5 & n.5, *12-13

(D. Vt. Jan. 7, 2021). This decision—that the petitioners should be

denied full preliminary injunctive relief because Rice’s religious

mission and curriculum justified extra precautionary measures—was

itself status-based religious discrimination. The district court

therefore rendered a decision that “cannot be located within the range

of permissible decisions,” supporting mandamus. United States v.

Manzano (In re United States), 945 F.3d 616, 625 (2d Cir. 2019).

In ruling on the motion for a preliminary injunction, the district

court considered the school districts’ claim that “it would be difficult,

if not impossible, to segregate religious education from secular

courses” at Rice. French I, 2021 WL 62301, at *5. Earlier in the litigation,

the school districts had asked the district court to take judicial notice

of one page on Rice’s website which indicated that “Faith” was the

first of “The Four Pillars of Rice” and “is weaved into every aspect of

life at Rice.” App’x 331-32. The district court took notice not only of

this webpage but of Rice’s entire website and analyzed pages

describing Rice’s mission and curriculum. French I, 2021 WL 62301, at

*1, *5. Based on its review of this material, the district court concluded

that Rice offers not only “secular educational courses” but also

“religious education” and that, therefore, the school districts could

not at that time be ordered to pay tuition to Rice in light of Chittenden

Town. Id. at *5, *12. 1

The district court’s refusal to remedy the school districts’ prior

status-based discrimination was thus premised on its determination

that religion pervaded Rice’s mission and curriculum such that the

school districts could not fund tuition at such a school without

imposing extra precautionary measures. By conditioning access to a

public benefit “on the degree of religiosity of the institution and the

extent to which that religiosity affects its operations, as defined by

such things as the content of its curriculum,” a state actor

“discriminates among religious institutions on the basis of the

pervasiveness or intensity of their belief.” Colo. Christian Univ. v.

Weaver, 534 F.3d 1245, 1259 (10th Cir. 2008). “This is discrimination

‘on the basis of religious views or religious status.’” Id. at 1258

(quoting Emp't Div. v. Smith, 494 U.S. 872, 877 (1990)). Therefore, the

district court’s reliance on its sua sponte assessment of Rice’s mission

1 See French I, 2021 WL 62301, at *5 & n.5 (“[Rice] offers secular educational

courses as well as courses offered by its ‘Religion Department’ including

‘Scripture,’ ‘Catholic Faith and Sacraments,’ ‘Morality & Social Justice,’

‘Catholicism Today,’ ‘Love and Life Choices,’ and ‘Art and Spirituality.’ ...

[T]hese materials remain relevant to the availability and scope of injunctive

relief.”); id. at *12 (“This court cannot simply order the School Defendants

to honor Plaintiffs’ [Rice] tuition requests. To do so would be to ignore

ample evidence that at least some of the courses offered by [Rice] consists

of religious education.”).

2

and curriculum to support its decision exceeded “a lawful exercise of

its prescribed jurisdiction.” Roche v. Evaporated Milk Ass’n, 319 U.S. 21,

26 (1943). 2

Before the district court, the school districts invoked a similar

“pervasively sectarian” test to justify the petitioners’ categorical

exclusion from the TTP, 3 arguing that “[t]he Vermont Constitution …

as interpreted in Chittenden, prohibits the use of public funds to

advance religious worship, and it is not possible to safeguard against

the use of those funds for that purpose given the sectarian nature of

2 The district court denied the injunctive relief in an effort to allow the

school districts to apply a use-based restriction. Yet “[s]tatus-based

discrimination remains status based even if one of its goals or effects is

preventing religious organizations from putting aid to religious uses.”

Espinoza v. Mont. Dep't of Revenue, 140 S. Ct. 2246, 2256 (2020) (holding that

status-based discrimination against “some recipients, particularly schools

that believe faith should permeate everything they do,” cannot be justified

by a concern that “[g]eneral school aid … could be used for religious ends”

by those recipients) (internal quotation marks, alterations, and emphasis

omitted); see also A.H. ex rel. Hester v. French (French II), 985 F.3d 165, 183 (2d

Cir. 2021) (holding that Espinoza’s rule against status-based discrimination

applies “[e]ven if [the government] was motivated by a desire to prevent

the use of public funds for religious worship”).

3 Under the “pervasively sectarian” test, “no state aid at all [may] go to

institutions that are so ‘pervasively sectarian’ that secular activities cannot

be separated from sectarian ones.” Roemer v. Bd. of Pub. Works, 426 U.S. 736,

755 (1976); see also Meek v. Pittenger, 421 U.S. 349, 365-66 (1975) (“Even

though earmarked for secular purposes, ‘when it flows to an institution in

which religion is so pervasive that a substantial portion of its functions are

subsumed in the religious mission,’ state aid has the impermissible primary

effect of advancing religion.”), overruled by Mitchell v. Helms, 530 U.S. 793

(2000). The Supreme Court has since rejected this test. See Mitchell, 530 U.S.

at 829 (plurality opinion); id. at 837 (O’Connor, J., concurring in the

judgment).

3

Rice’s curriculum.” App’x 310 (emphasis added). In the briefing

before this court, however, French argues that neither his agency nor

school districts currently rely on a pervasively sectarian test and that

Chittenden Town does not require the exclusion of pervasively

sectarian schools. 4

Ironically, despite French’s disavowal of a pervasively

sectarian test, the district court’s decision invites such a test. It

assumes that a school district may require a school to separate

“secular educational courses” from “religious education” so that the

district may cover “only the cost of secular educational expenses.”

French I, 2021 WL 62301, at *5, *12. Such an approach would exclude

“pervasively sectarian” schools—which (either according to the

school’s own self-description or in a school district’s judgment) do not

distinguish secular from religious activities. Yet “nothing in the

Establishment Clause requires the exclusion of pervasively sectarian

schools from otherwise permissible aid programs, and other doctrines

of [the Supreme] Court bar it.” Mitchell v. Helms, 530 U.S. 793, 829

(2000) (plurality opinion). In particular, applying a “‘pervasively

sectarian’ factor collides with our decisions that have prohibited

governments from discriminating in the distribution of public

benefits based upon religious status or sincerity.” Id. at 828.

II

Second, the writ of mandamus is “appropriate under the

circumstances,” Cheney v. U.S. Dist. Ct., 542 U.S. 367, 381 (2004), not

simply because the district court prioritized “the respondents’ desire

4 Appellee Daniel M. French’s Response to Appellants’ Emergency Motion

for Injunction Pending Appeal Under Fed. R. App. P. 8, at 21 & n.6

[hereinafter French Opposition].

4

to adhere to Chittenden Town” over “the petitioners’ entitlement to be

restored to the position they would have occupied had the school

districts not violated their rights under the First Amendment,” ante at

19-20. In doing so, moreover, the district court relied on the

questionable legal premise that the school districts could “fashion[]

appropriate safeguards” to delineate use-based restrictions on TTP

funding consistent with Chittenden Town and thereby cure the

constitutional problem with the previous policy. French I, 2021 WL

62301 at *11-13 (internal quotation marks omitted). The district court

apparently concluded that creating such restrictions would be

straightforward and devoted little attention to whether those

restrictions would be permissible, stating only that “[b]ecause

Chittenden Town prohibits only religious use, it does not conflict with

Espinoza.” Id. at *11

Even a use-based restriction, however, would be subject to

strict scrutiny if it applied specifically to religious schools or to

religious conduct because such a restriction would “violate ‘the

minimum requirement of neutrality’ to religion.” Roman Catholic

Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 66 (2020) (quoting Church of

the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 533 (1993)).

A policy “burdening religious practice that is not neutral or not of

general application must undergo the most rigorous of scrutiny.”

Church of the Lukumi, 508 U.S. at 546. To survive such scrutiny the

policy “must advance interests of the highest order and must be

narrowly tailored in pursuit of those interests.” Id. (internal quotation

marks omitted). A state’s “interest in separating church and State

more fiercely than the Federal Constitution … ‘cannot qualify as

compelling’” because “[a] State’s interest ‘in achieving greater

separation of church and State than is already ensured under the

5

Establishment Clause is limited by the Free Exercise Clause.’”

Espinoza, 140 S. Ct. at 2260 (quoting Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2022 (2017)) (alteration

omitted).

The Establishment Clause does not require Vermont to avoid

funding religious education through the TTP. “[T]he Establishment

Clause is not offended when religious observers and organizations

benefit from neutral government programs.” Id. at 2254. And “[a]ny

Establishment Clause objection” to TTP funds supporting religious

education would be “particularly unavailing because the government

support makes its way to religious schools only as a result of [parents]

independently choosing” specific schools for their children to attend.

Id.; see also Locke v. Davey, 540 U.S. 712, 719 (2004) (“Under our

Establishment Clause precedent, the link between government funds

and religious training is broken by the independent and private

choice of recipients.”). At one point in its opinion, the district court

suggested that the TTP was not based on parental choice because the

governing statute “grants only a sending school board decision-

making authority.” French I, 2021 WL 62301, at *12 (citing 16 V.S.A.

§ 822(c)(2)). Yet the school board may provide TTP funds to an

independent school only if the school is “selected by the parents or

guardians of the student.” 16 V.S.A. § 822(a). That the school district

actually dispenses the funds does not mean that funding decisions are

not attributable to parental choice. 5

5 See Aaron Saiger, Charter Schools, the Establishment Clause, and the

Neoliberal Turn in Public Education, 34 Cardozo L. Rev. 1163, 1198 (2013) (“It

is not as if the vouchers in Zelman or the scholarship in Witters involved

actual cash given to private parties, who then elected whether to send it on

to the school in which they enrolled; the programs involved paperwork, not

6

To be sure, the Supreme Court has “recognized a ’play in the

joints’ between what the Establishment Clause permits and the Free

Exercise Clause compels.” Espinoza, 140 S. Ct. at 2254 (internal

quotation marks omitted) (quoting Locke, 540 U.S. at 718). But that

space is narrow. In order for a use-based exclusion to receive the less

exacting scrutiny the Supreme Court applied in Locke, that exclusion

must advance “a ‘historic and substantial’ state interest” or

“tradition.” Id. at 2257-58 (quoting Locke, 540 U.S. at 725). And

Espinoza clarifies that, while there is “a ‘historic and substantial’ state

interest in not funding the training of clergy,” there is no comparable

interest or tradition of states declining to aid religious education more

broadly understood. 6

French argues that “Espinoza never stated that ‘vocational

religious instruction’ was the only ‘distinct category of instruction’ or

‘essentially religious endeavor’ that government need not fund

tender.”); see also Zelman v. Simmons-Harris, 536 U.S. 639, 655 (2002)

(upholding a voucher program “where state aid reaches religious schools

solely as a result of the numerous independent decisions of private

individuals”); Witters v. Wash. Dep’t of Servs. for the Blind, 474 U.S. 481, 488

(1986) (upholding a scholarship program in which aid that “ultimately

flows to religious institutions does so only as a result of the genuinely

independent and private choices of aid recipients”).

6 Espinoza, 140 S. Ct. at 2258 (“[N]o comparable ‘historic and substantial’

tradition supports [a state’s] decision to disqualify religious schools from

government aid. In the founding era and the early 19th century,

governments provided financial support to private schools, including

denominational ones. … Local governments provided grants to private

schools, including religious ones, for the education of the poor. Even States

with bans on government-supported clergy … provided various forms of

aid to religious schools.”) (quoting Locke, 540 U.S. at 725) (internal citations

omitted).

7

without offending the Free Exercise Clause.” French Opposition 17

(quoting Locke, 540 U.S. at 721, 725). Yet Espinoza did explain that only

a “historic and substantial” tradition would allow a government to

exclude religious conduct from generally available public benefits

without satisfying strict scrutiny. Espinoza, 140 S. Ct. at 2257-58. And

Espinoza provided an account of the historical record according to

which there is no such tradition of excluding religious education at

high schools. Id. Neither the district court nor the respondents have

identified any evidence of a historic tradition of use-based restrictions

or “adequate safeguards” surrounding religious education. French

cites Chittenden Town as evidence of such a tradition. But that decision,

issued in 1999, identified a historic state tradition only of avoiding

“public support of churches and ministers.” Chittenden Town Sch. Dist.

v. Dep’t of Educ., 738 A.2d 539, 553 (Vt. 1999).

Any new religious use-based restrictions on TTP funds would

need to “advance interests of the highest order and ... be narrowly

tailored in pursuit of those interests.” Church of the Lukumi, 508 U.S. at

546 (internal quotation marks omitted). Yet the district court decided

that the petitioners should wait for relief until the school districts

developed such restrictions and relied on the school districts’ ability

to do so without recognizing the legal issues such new restrictions

would raise.

The district court also assumed that the new restrictions could

distinguish religious from secular uses of funds such that tuition

could be “apportioned between secular and religious education.”

French I, 2021 WL 62301, at *5. But an evaluation of Rice’s curriculum

to determine which courses and activities qualified as “religious

education”—including the district court’s own such evaluation—

would likely entail “intrusive judgments regarding contested

8

questions of religious belief or practice” and thereby raise additional

concerns under the First Amendment. Colo. Christian Univ., 534 F.3d

at 1261; see also Mitchell, 530 U.S. at 828 (“[C]ourts should refrain from

trolling through a person’s or institution’s religious beliefs.”).

Thus, the district court’s artificially limited preliminary

injunction resulted from a misapprehension of the applicable legal

standards and the ease with which the respondents could apply an

alternative policy that restricted religious uses of TTP funds. For these

additional reasons, mandamus is “appropriate under the

circumstances.” Cheney, 542 U.S. at 381.

9