“Confirmed Judges, Confirmed Fears” is a blog series documenting the harmful impact of President Trump’s judges on Americans’ rights and liberties. Cases in the series can be found by issue and by judge at this link

 

Second Circuit Trump judge Steven Menashi wrote an opinion, joined by Trump judge Richard Sullivan, mandating that the state of Vermont pay a student’s tuition at a religious high school, despite a state constitutional provision forbidding such aid to religious schools. Menashi went even further in a concurring opinion, suggesting that such aid must be provided even if it is used to help fund religious worship and education. The June 2021 decision was in A.H. ex rel Hester v French.

The State of Vermont has a Town Tuition Program (TTP) under which school districts without high schools pay tuition to other high schools chosen by parents of high school-age students in such districts. Under a Vermont state constitutional provision that prohibits the use of taxpayer funds to pay for “religious education” and worship that is more protective of church-state separation than the First Amendment, state school districts denied a TTP funding request of several students to attend a religiously affiliated high school, Rice Memorial. As part of its effort to challenge such state provisions, the right-wing Alliance Defense Fund (ADF) filed suit against the school districts and the state.

Based on the Supreme Court’s controversial 2020 ruling in the Espinoza case concerning a similar provision in the Montana constitution, a district court ruled partially for ADF. It held that it was improper for school districts to deny TTP assistance “solely because” of Rice Memorial’s “religious affiliation,” as the Court ruled in Espinoza, and enjoined them from continuing to do so. The court made clear that it would “tread no further,” however, and indicated that while the litigation remained pending, tuition reimbursement for Rice Memorial could continue to be denied as the districts and the state sought to develop safeguards to ensure that religiously affiliated schools do not, as the court of appeals put it, “use public funds to support worship” or religious education at “religious schools.” ADF appealed, seeking funding for students to attend Rice Memorial for the next school year while the litigation continues.

Trump judge Menashi’s opinion, following up on a previous order by the court, granted that relief. Menashi maintained that no one in Vermont had developed such safeguards in the twenty-plus years since the state supreme court suggested they were appropriate, and the district court’s order allowed what he called the “constitutional injury” to ADF’s clients to “continue unabated” while the litigation and work on such safeguards continued. The court accordingly granted a writ of mandamus requiring TTP funding of tuition at Rice Memorial as the litigation moves forward.

Menashi went even further in a concurring opinion, which was not joined by the other judges on the panel. He suggested that it was “questionable” whether safeguards against religious schools using public funds for religious purposes could properly be developed, and that any such restrictions could well “violate the minimum requirement of neutrality to religion” and the Free Exercise Clause of the First Amendment.  This was similar to the argument made by Trump Justice Gorsuch in Espinoza, where he went beyond the 5-4 majority and suggested it would violate the First Amendment for Montana to prohibit state aid for “religious activities” at religious schools. As a Vermont constitutional law professor put it, Menashi’s concurrence effectively adopted the “Free Exercise scorched earth policy” that ADF “has been actively pursuing” to require government to fund even clearly religious activities at religious schools and other institutions.

What will ultimately happen in this case and on this issue remains unclear. But there is little question that Trump nominees like Gorsuch and Menashi will continue to pursue the “Free Exercise scorched earth policy” of far right groups and seek to require even states with a strong commitment to church-state separation to fund religious activities with taxpayer funds, contrary to the principles of our nation’s Founders like Thomas Jefferson. To seek to counterbalance these judges, it is crucial to our fight for our courts that President Biden continue to nominate and the Senate confirm fair-minded judges with a commitment to the principles of our Constitution.