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A.M. v. French

United States District Court, D. Vermont

December 20, 2019

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,
v.
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

         Minor 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 Fourteenth Amendments.

         In 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).

         Pending 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.

         Plaintiffs 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.

         I. Whether the Court Should Address Defendant's Motion to Dismiss in the Context of the Proposed FAC.

         Plaintiffs 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.

         Pursuant 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).

         "When 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 therefore GRANTED.

         II. The FAC's Allegations.

         A. Vermont's Town Tuition Program, Vermont's Jurisprudence, the Flexible Pathways Initiative, and the DEP.

         Plaintiffs 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).

         As the 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).

         In 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.

         The 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).

         Although 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.

         The DEP 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.

         Through 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 ...

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