United States District Court, D. Vermont
A.M., by and through his parents and natural guardians, Christopher Messineo and Jill Messineo; E.M., by and through her parents and natural guardians, Christopher Messineo and Jill Messineo; CHRISTOPHER MESSINEO, individually; JILL MESSINEO, individually; A.S., by and through her parents and natural guardians, Russell Senesac and Selena Senesac; RUSSELL SENESAC, individually; SELENA SENESAC, individually; and the ROMAN CATHOLIC DIOCESE OF BURLINGTON, VERMONT, Plaintiffs,
DANIEL M. FRENCH, in his official capacity as Secretary of the Vermont Agency of Education, Defendant.
OPINION AND ORDER GRANTING PLAINTIFFS' MOTION TO
AMEND THE COMPLAINT AND GRANTING IN PART AND DENYING IN PART
DEFENDANT'S MOTION TO DISMISS (DOCS. 14 AND 53)
Christina Reiss, United States District Court District Judge
plaintiffs A.M. and E.M., their parents Christopher Messineo
and Jill Messineo, minor plaintiff A.S., her parents Russell
Senesac and Selena Senesac, and the Roman Catholic Diocese of
Burlington, Vermont (collectively, "Plaintiffs")
bring this action against Defendant Daniel M. French
("Defendant") in his official capacity as Secretary
of the Vermont Agency of Education, alleging that the State
of Vermont's Dual Enrollment Program (the
"DEP") for high school students incorporates
religion-based eligibility criteria that violate
Plaintiffs' constitutional rights under the First and
their initial Complaint as well as in their proposed First
Amended Complaint ("FAC"), Plaintiffs assert two
claims for which they seek declaratory and injunctive relief.
First, they assert that the State of Vermont has burdened the
free exercise of religion by certain individual plaintiffs as
well as Rice Memorial High School ("RMHS") through
its administration of the DEP (Count I). And second, they
assert the State deprived all Plaintiffs of the equal
protection of the laws by administering the DEP so as to
burden the free exercise of religion and by treating
home-schooled students differently from private school
students without a rational basis for doing so (Count II).
before the court are Defendant's March 20, 2019 motion to
dismiss the Complaint (Doc. 14) and Plaintiffs' September
25, 2019 motion to amend the Complaint (Doc. 53). Plaintiffs
opposed the motion to dismiss on May 10, 2019. The United
States of America filed a Statement of Interest in opposition
to Defendant's motion to dismiss addressing only
Plaintiffs' free exercise claim. Defendant filed a reply
on June 7, 2019. On July 1, 2019, Plaintiffs filed a
sur-reply with the court's permission. Defendant
responded to Plaintiffs' sur-reply on July 30, 2019. The
court held oral argument on August 2, 2019, at which time the
court took Defendant's motion to dismiss under
advisement. Thereafter, while the motion to dismiss was
pending, Plaintiffs sought leave to amend their Complaint
(Doc. 53), which Defendant opposed on October 9, 2019.
Plaintiffs replied in support of their motion to amend on
October 22, 2019.
are represented by Thomas E. McCormick, Esq., Gregory S.
Baylor, Esq., Christiana M. Holcomb, Esq., and David A.
Cortman, Esq. Defendant is represented by Assistant Attorney
General Jon T. Alexander.
Whether the Court Should Address Defendant's Motion to
Dismiss in the Context of the Proposed FAC.
seek to amend their Complaint to reflect the Messineo
family's relocation from the Georgia, Vermont school
district to the Colchester, Vermont school district, which
affects the eligibility of A.M. and E.M. to participate in
the DEP. Due to their change of school district, plaintiffs
A.M. and E.M. no longer assert a free exercise claim. In
their place, Plaintiffs seek to add as plaintiffs A.H. and
her parents, James and Darlene Hester (the "Hester
Plaintiffs"). The Hester Plaintiffs live in the South
Hero, Vermont school district and seek to assert a free
exercise claim "aris[ing] out of the same operative
facts" previously asserted by the Messineos. (Doc. 53 at
2.) In their FAC, Plaintiffs clarify that they do not claim
that Vermont law categorically bars all private religious
schools and their students from participating in the DEP.
(Doc. 53-1 at 9, ¶ 46.) Defendant opposes
Plaintiffs' motion for leave to amend on the grounds that
the proposed amendments are futile.
to Fed.R.Civ.P. 15(a)(1), "[a] party may amend its
pleading once as a matter of course within . . . [twenty-one]
days after service of a responsive pleading or [twenty-one]
days after service of a motion under Rule 12(b), (e), or (f),
whichever is earlier." If more than twenty-one days have
elapsed, "a party may amend its pleading only with the
opposing party's written consent or the court's
leave[, ]" but "[t]he court should freely give
leave when justice so requires." Fed.R.Civ.P. 15(a)(2).
"Leave to amend may properly be denied if the amendment
would be futile, as when the proposed new pleading fails to
state a claim on which relief can be granted[.]"
Anderson News, L.L.C. v. Am. Media, Inc., 680 F.3d
162, 185 (2d Cir. 2012) (internal citations omitted).
"The adequacy of [a] proposed amended complaint... is to
be judged by the same standards as those governing the
adequacy of a filed pleading." Ricciuti v. N.Y.C.
Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991).
a plaintiff amends its complaint while a motion to dismiss is
pending the court may deny the motion as moot or consider the
merits of the motion in light of the amended complaint."
Illiano v. Mineola Union Free Sch. Dist., 585
F.Supp.2d 341, 349 (E.D.N.Y. 2008) (citation, alterations,
and internal quotation marks omitted). In order to further
the "just, speedy, and inexpensive determination"
of this action, Fed.R.Civ.P. 1, the court considers
Defendant's arguments for dismissal in light of the FAC.
"In this manner, [the court] may determine whether the
amendments would be futile and at the same time consider
whether a claim should be dismissed." Phillips v.
Orleans Cty., 2019 WL 3088051, at *4 (W.D.N.Y. July 15,
2019). Plaintiffs' Motion to Amend the Complaint is
The FAC's Allegations.
Vermont's Town Tuition Program, Vermont's
Jurisprudence, the Flexible Pathways Initiative, and the
allege that since 1869, Vermont has maintained a "Town
Tuitioning Program" which provides educational vouchers
for students who live in towns without public schools.
Pursuant to this statutory program, a town without a public
school pays tuition on behalf of its students directly to
either a public school in another school district or to an
approved private school. The Vermont Supreme Court has
described the statutory scheme as "quite simple."
Chittenden Town Sch. Dist. v. Dep't of Educ.
(Chittenden Town), 738 A.2d 539, 544 (Vt. 1999). If
a town school district "provides elementary education,
it is required to provide secondary education."
Id. (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) (citing 16 V.S.A. § 822(a)-(b)).
The approval for public or independent high schools is given
by the Vermont Board of Education. 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. at 545 (quoting 16 V.S.A. § 166(b))
(internal footnotes omitted).
Vermont Supreme Court has observed, "[n]either 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. 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).
Chittenden Town, the Vermont Supreme Court
"considered] the constitutional implications of the
Vermont statutes authorizing school districts to provide high
school education to their students by paying tuition for
nonpublic schools selected by their parents." 738 A.2d
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[, ]" the Vermont Supreme Court
addressed only "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." Id. 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 the absence of
adequate safeguards against the use of such funds for
religious worship[, ]" id., the 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 tuition reimbursement scheme
was only the absence of "restrictions that prevent the
use of public money to fund religious education."
Id. at 562.
Vermont Supreme Court recently 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, 178 A.3d 313,
320, 205 Vt. 586, 597-98 (citation omitted).
Plaintiffs do not challenge the eligibility criteria for the
alleged "Town Tuitioning Program[, ]" they
"challenge the use of those criteria in operating the
quite distinct [DEP.]" (Doc. 53-2 at 5, ¶ 22.) They
claim the State has created restrictions on which students
may participate in the DEP that impose a burden on the free
exercise of religion that is both unnecessary and
unconstitutional. Although neither the stated purposes of the
DEP nor Chittenden Town require it, only students at
private religious high schools are precluded from
participation in the DEP even if no funds will be used to
subsidize religious worship.
is part of Vermont's Flexible Pathways Initiative that
was created for three stated purposes:
(1) to encourage and support the creativity of school
districts as they develop and expand high-quality educational
experiences that are an integral part of secondary education
in the evolving 21 st Century classroom;
(2) to promote opportunities for Vermont students to achieve
postsecondary readiness through high-quality educational
experiences that acknowledge individual goals, learning
styles, and abilities; and
(3) to increase the rates of secondary school completion and
postsecondary continuation in Vermont.
16 V.S.A. § 941(a). As both parties concede, all three
purposes of the DEP are religiously neutral.
the DEP, an eligible high school student "may enroll in
up to two dual enrollment courses prior to completion of
secondary school for which neither the student nor the
student's parent or guardian shall be required to pay
tuition." 16 V.S.A. § 944(b)(2). Participation in
the DEP is open to students who meet the following criteria:
(1) A Vermont resident who has completed grade [ten] but has
not received a high school diploma is eligible to ...