Pro-Life Pregnancy Centers May Move Ahead with Challenges to Vermont Regulations

 In National Institute of Family and Life Advocates v. Clark, (D VT, June 14, 2024), a Vermont federal district court allowed three pro-life pregnancy centers to move ahead with free speech challenges to Vermont's regulation of limited-service pregnancy centers. At issue is a prohibition on disseminating misleading information about the services offered by such pregnancy centers as well as a provision making health care professionals at these pregnancy centers responsible for the conduct and speech of non-licensed individuals.  The statute also provides that offering services to reverse a medication abortion constitutes unprofessional conduct by health care workers at the centers. The court rejected the state's claim that the speech being regulated is commercial speech or is regulation of professional conduct that merely incidentally regulates speech. It allowed plaintiffs to move ahead with their claims that the statutes discriminate on the basis of the viewpoint. However, the court dismissed plaintiffs' vagueness claims. ADF issued a press release announcing the decision.

Suit Challenges Vermont Foster Care Rules on Sexual Orientation and Gender Identity

Suit was filed yesterday in a Vermont federal district court by two couples challenging a policy adopted by the state foster care agency relating to sexual orientation, gender identity/ expression (SOGIE). Plaintiffs allege that the policy is inconsistent with their Christian religious beliefs. The complaint (full text) in Wuoti v. Winters, (D VT, filed 6/4/2024) alleges in part:

According to the Department, to meet the “needs of each foster child” under Rule 301 (emphasized), all parents must demonstrate that they can support any hypothetical child’s SOGIE....

All foster families must show that they will unconditionally support and affirm a child’s desire to dress, cut their hair, or wear accessories to express their stated gender identity,,,,

Plaintiffs allege that as applied the policy violates their 1st Amendment free speech rights:

... [T]he Department’s Mandate requires applicants to agree to speak certain words, like inaccurate pronouns, and to engage in certain expressive activities, like pride parades, that express the Department’s preferred views on human sexuality, as a condition for accessing child-welfare services. 

... [T]he Department’s Mandate forbids applicants from expressing certain views, like the Plaintiffs’ religious views on human sexuality, and engaging in certain expressive activities, like attending church, as a condition for accessing child-welfare services....

They also allege that the policy violates their 1st Amendment religious free exercise rights:

... The Wuotis and the Gantts have certain sincerely held religious beliefs about the human body and human sexuality, and they are also religiously motivated to provide foster care and adoption. 

... The Department’s SOGIE Mandate conditions Plaintiffs’ ability to obtain a foster-care license on their willingness to speak and act contrary to these religious beliefs.

The complaint also alleges due process and equal protection claims. ADF issued a press release announcing the filing of the lawsuit. 

Christian School Sues Vermont Challenging Sexual Orientation and Gender Identity Rules

Suit was filed yesterday in a Vermont federal district court by a Christian school seeking to participate in the state's Town Tuitioning and Dual Enrollment Programs as well as in Vermont Principals' Association athletic competitions. It has been precluded from doing so because of rules banning it from discriminating on the basis of sexual orientation or gender identity in order to participate. Two families whose children participate in athletics at the school are also plaintiffs. The complaint (full text) in Mid Vermont Christian School v. Bouchey, (D VT, filed 11/21.2023), alleges in part:

The State-through its Agency of Education ... and the Vermont Principal's Association ... requires religious schools like Mid Vermont Christian School ... to follow (and affirm compliance with) laws, rules, and policies that prevent those schools from operating consistently with their religious beliefs about sexuality and gender.

ADF issued a press release announcing the filing of the lawsuit.

Vermont Pregnancy Counseling Centers Sue Over New Restrictions

Suit was filed yesterday in a Vermont federal district court attacking Vermont's recently-enacted SB 37 which, among other things, imposes new regulation on anti-abortion pregnancy counseling centers. The law prohibits advertising of services that is "untrue or clearly designed to mislead the public about the nature of the services provided." It also provides that licensed health care professionals who provide services at such centers are responsible for ensuring that services, information and counseling at the center complies with these requirements. The complaint (full text) in National Institute of Family and Life Advocates v. Clark, (D VT, filed 7/25/2023) contends that these provisions are unconstitutionally vague and also violate the free speech rights of clinics, alleging in part:

111. The Advertising Prohibition provides no guidance as to how it should be applied to advertisements including medical information on which there is no medical consensus.

112. The Advertising Prohibition is also unclear as to whether it requires a disclosure in all advertisements that the pregnancy center does not provide abortions or "emergency contraception."

113. Requiring such a disclosure would compel the centers' speech.

114. The Advertising Prohibition has chilled Plaintiffs' speech.

115. For example, Aspire's medical director created a video about abortion pill reversal that Aspire would like to post on its website....

168. Because Plaintiffs do not charge for their services, the Provider Restriction, 9 V.S.A. § 2493(b), regulates Plaintiffs' non-commercial speech.

169. The Provider Restriction is a viewpoint- and content-based regulation of pure speech because it directly regulates speech about health-care-related" information" and "counseling" by "limited-services pregnancy centers," even when no medical treatment or procedure is involved. 9 V.S.A. § 2493(b).

ADF issued a press release announcing the filing of the lawsuit.

Coach Sues Over Dismissal for His Remarks About Transgender Athletes

Suit was filed this week in a Vermont federal district court by a high school snowboarding coach who was dismissed because of a comment he made regarding a transgender woman on a team that would be competing against his female high school team. The school's notice of termination (Exhibit 8 in Complaint) alleges that the coach used "disparaging names" that created "an objectively offensive environment and constituted harassment based on gender identity...." In the Complaint (full text) in Bloch v. Bouchey, (DD VT, filed 7/17/2023), the coach however alleged in part:

3. Coach Bloch is also a practicing Roman Catholic who believes that God creates males and females with immutable sex. His understanding of science complements his religious beliefs. Coach Bloch believes, based on scientific evidence, that there are only two sexes, which are male and female, and that sex is determined by a person's chromosomes. 

4. But Coach Bloch's respectful expression of his beliefs contradicted the prevailing orthodoxy of the Defendant Vermont state officials, school district, and superintendent. So, Defendant Superintendent Sherry Sousa terminated him and barred him from future employment in the school district. 

5. On February 8, 2023, Coach Bloch and his team were waiting in the lodge for a competition to start. That day, his team was to compete against a team that had a male snowboarder who identifies as a female and competes against females. During downtime in the lodge, Coach Bloch overheard a conversation between two of his athletes about that male competing against females. 

6. Coach Bloch joined the conversation to offer that people express themselves differently and that there can be masculine women and feminine men. 

7. But he affirmed that as a matter of biology, males and females have different DNA, which causes males to develop differently from females and have different physical characteristics. Coach Bloch discussed that biological differences generally give males competitive advantages in athletic events. 

8. The conversation was respectful among all parties and lasted no more than three minutes. It took place entirely outside the presence of the transgender-identifying snowboarder. 

9. Coach Bloch's team and the team with the male who identifies as a female competed without incident. After the competition, the two teams and their coaches, including Coach Bloch, shared a bus home.

The complaint goes on to allege that the school was acting pursuant to Vermont's Harassment, Hazing and Bullying Law. It contends that the HHB Law and policies under it violated the coach's free speech rights, including the 1st Amendment's ban on viewpoint discrimination, prior restraints and overbreadth. It also alleges due process violations.  ADF issued a press release announcing the filing of the lawsuit.

Student and Coach Sue After Being Disciplined for Criticizing Transgender Student's Use of Girl's Locker Room

Suit was filed last week in a Vermont federal district court by a 14-year old student and her father, a school soccer coach, contending that their free speech and due process rights were violated when the school disciplined them for remarks they made criticizing a transgender female's use of the girl's locker room. The daughter's remarks were made to friends in a French class.  The father made his remarks in a Facebook post.  The controversy escalated and was covered by a local TV station.  The complaint (full text) in Allen v. Millington, (D VT, filed 10/27/2022), alleges in part:

The First Amendment does not countenance this kind of government censorship, where a public school mandates that students and coaches refrain from expressing any view that offends its prescribed views....This case presents a textbook example of unconstitutional viewpoint discrimination, and Plaintiffs are entitled to all appropriate relief.

ADF issued a press release announcing the filing of the lawsuit.

Suit Challenges Latest Application Of Vermont Town Tuition Program

Suit was filed last week in a Vermont federal district court challenging the manner in which the state administers its Town Tuition Program that provides tuition reimbursement for students from towns that do not have their own public high schools. Reimbursement is available for attendance at private or out-of-district public high schools.  The complaint (full text) in Plaintiff E. W. v. French, (D VT, filed 2/24/2022), alleges that the state's current policy:

requires school districts to collect information on private religious schools' religious activity and to reduce or deny tuition benefits to account for religious schools' "religious worship" or "religious education."

The suit contends that this violates plaintiffs free exercise, free speech, Establishment Clause and due process rights, saying in part:

Defendants have no legitimate interest in enacting a greater separation of Church and State than is provided by the Establishment Clause of the First Amendment to the United States Constitution.

The Town Tuition Program has been the subject of extensive prior litigation. (See prior posting.) ADF issued a press release announcing the filing of the lawsuit.

Court Sorts Out Standing Issues And Substantive Challenges To Vermont Town Tuition Program

In Valente v. French, (D VT, Aug. 16, 2021), students and their parents sued various school agencies and districts challenging their policy of refusing to pay tuition to religious schools under Vermont's Town Tuition Program. Under that program, school districts that do not operate their own high schools pay tuition for students to attend other schools. However, sectarian schools are excluded unless there are adequate safeguards against the use of the tuition funds for religious worship. The court held that plaintiffs have standing to sue various state agencies, having alleged that they have not taken appropriate steps to prevent school districts from discriminating against religion in the Town Tuition Program. However the court found no standing to sue supervisory unions made up of local school boards which have no responsibility for the tuition payments.

The court went on to hold that plaintiffs have adequately alleged an equal protection claim and (except for one plaintiff) a free exercise claim against the state defendants, but have not adequately alleged an Establishment Clause or substantive due process claim. Eleventh Amendment defenses were also rejected.

In a companion case, A.H. v. French, (D VT, Aug. 16, 2021), students, parents and the Catholic Diocese sue challenging the refusal to allow Rice Memorial High School, a Catholic high school, to participate in the Town Tuition Program. The court held that the parents have standing to sue the state Agency of Education and its secretary, saying that plaintiffs allege these defendants set policy and directed school districts to exclude religious schools and their students. It also rejected 11th Amendment defenses by the head of the Agency. However the court held that the Diocese of Burlington lacks standing to assert the interests of parents who wish to send their children to Rice.

2nd Circuit: Vermont Town Tuition Program Cannot Exclude Parochial Schools

 In A.H. v. French, (2d Cir., June 2, 2021), the U.S. 2nd Circuit Court of Appeals filed its opinion explaining its Feb. 3, 2021 Order granting a petition for a writ of mandamus.  At issue was Vermont's refusal to allow students attending religious schools to participate in the state's Town Tuition Program. School districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved non-religious private high school. The Second Circuit held that the exclusion of religious high schools from the program violates the First Amendment, saying in part:

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.... 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.... 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”....

Judge Menashi filed a concurring opinion.

Vermont State School Board Orders Payment Of Tuition To Religiously Affiliated Schools

In In re Appeal of Valente, (VT State Bd. Educ., April 21, 2021), the Vermont State Board of Education, in appeals by three families, ordered local school boards in districts without public high schools to pay students' tuition to religiously affiliated high schools. Vermont law requires school districts that do not have public high schools to pay tuition for students to attend another public or private school. The Vermont Supreme Court in Chittenden Town School Dist. v. Dept. of Educ.,(1999) limited the ability of districts to pay tuition to religious schools, while the U.S. Supreme Court has held that the 1st Amendment bars exclusion of religiously affiliated schools from general aid programs. The Board of Education said in part:

The type of use restriction and certification discussed in Mitchell may provide a reasonable option going forward for harmonizing the state and federal constitutional requirements. School districts ... could ask all ... schools to certify that public tuition payments will not be used to fund religious instruction or religious worship. Such an approach would place all independent schools on an equal footing; regardless of perceived or actual religious affiliation, all independent schools would be asked to provide the same assurance regarding the use of public tuition payments. No school would be excluded based solely on its religious affiliation. And no school would be required to “refrain from teaching religion.” ... Schools themselves would be left to decide whether to accept public tuition payments that could not be used to fund religious worship or religious instruction. 

The Board offers these observations with the caveat that this is not a rulemaking proceeding and it cannot, in this context, provide any binding direction to school districts. Further, as explained above, constitutional questions remain unsettled. As litigation moves through the courts, the permissible legal parameters may become clearer. Ultimately the courts will have to resolve whether the use restriction that Chittenden requires can co-exist with First Amendment requirements.

VTDigger reports on the decision.

2nd Circuit: Vermont May Not Exclude Religious School Students From Dual Enrollment Program

In A.H. v. French, (2d Cir., Jan. 15, 2021), the U.S. 2nd Circuit Court of Appeals held that a preliminary injunction should issue to allow funding of a high school student's college enrollment under Vermont's Dual Enrollment Program. Vermont statutes pay for high schoolers in public schools to take two college courses. Students in private high schools are eligible to take advantage of the Dual Enrollment Program only if their high school tuition is publicly funded. Under a separate program-- the Town Tuition Program-- school districts that do not have high schools are to fund students' tuition in either out-of-district public high schools or secular private high schools. In this case, a student was denied participation in the Dual Enrollment Program because her high school was religious and thus was denied public funding under the Town Tuition Program. the court said in part: 

In these circumstances, the State’s reliance on the “publicly funded” requirement as a condition for DEP eligibility imposes a “penalty on the free exercise of religion.”...

Judge Menashi filed a concurring opinion. ADF issued a press release announcing the decision.

DOJ Sues Vermont Hospital For Violating Church Amendments

The Justice Department announced this week that it filed suit in a Vermont federal district court against the University of Vermont Medical Center for violating the Church Amendments that protect medical workers from being required to assist with abortions in violation of their religious or moral convictions. The complaint (full text) in United States v. University of Vermont Medical Center, (D VT, filed 12/16/2020) alleges in part:

Defendant has scheduled conscience objectors, including nurses, to assist with elective abortions despite specific and repeated requests from those personnel not to be assigned to elective abortions because of their religious beliefs or moral convictions. Moreover, Defendant has repeatedly assigned conscience objectors to participate in elective abortions without giving advance notice of the nature of the procedure.

2nd Circuit Hears Oral Arguments In Vermont School Voucher Case

On Tuesday, the U.S. 2nd Circuit Court of Appeals heard oral arguments (audio of full arguments) in A.M. v. French. In the case,  a Vermont federal district court refused to order the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. (See prior posting.) ADF (which represents plaintiffs) has a case page with links to some of the pleadings and other material on the case.

Vermont's Town Tuition Program Challenged

In Vermont, school districts that do not operate their own high schools must pay tuition costs for students in their district to attend another public high school or an approved private high school. Suit was filed this week in a Vermont federal district court challenging the exclusion of private religious schools from participating in this program, alleging that the exclusion violates free exercise, free speech and equal protection rights.  The complaint (full text) in A.H. v. French, (D VT, filed 9/28/2020) alleges in part:

Denying a public benefit based on the religious status of a child's school penalizes families who choose to exercise their faith by sending their children to religious schools. The school district's denial also discriminates against religious private schools because although the school board categorically refuses to fund tuition to religious schools, it regularly provides such funds to secular private schools. This discrimination violates the Free Exercise Clause's neutrality principle.

ADF issued a press release announcing the filing of the lawsuit.

2nd Circuit Enjoins Pending Appeal Vermont's Exclusion of Catholic High School Students From Dual Enrollment Program

As previously reported, earlier this year a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program that pays for high schoolers to take college courses. This week, in E.M. v. French, (2d Cir., Aug. 5, 2020), the U.S. 2nd Circuit Court of Appeals in a brief order granted an emergency injunction pending appeal, saying:

In light of the Supreme Court’s recent decision in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), Appellants have a strong likelihood of success on the merits of their claims.

ADF issued a press release  announcing the 2nd Circuit's action.

Court Refuses To Order Vermont To Extend Dual Enrollment Program To Catholic School

In A.M. v. French, (D VT, May 29, 2020), a Vermont federal district court refused to issue a preliminary injunction to require the state to allow a student enrolled in a Catholic high school to participate in the Dual Enrollment Program (DEP) that pays for high schoolers to take college courses. The court observed that while those administering DEP advised plaintiffs that religious parochial schools are ineligible to participate, this was an inaccurate characterization.  Instead, DEP is open to students enrolled in public schools, in private schools where a district without a public high school pays tuition, or students who are home schooled. In a prior decision, the Vermont Supreme Court held that the program allowing districts without public high schools to pay tuition to private schools violates the Vermont constitution only when the district reimburses tuition for a religious school and does not impose adequate safeguards to prevent the use of the funds for religious worship. In light of this, the federal district court said in part:

The DEP's plain text does not impose classifications or disparate treatment based on religion. Indeed, the statutory scheme does not even mention religion.... [A] home study student receiving a religious education from his or her parents may take religious education classes at a postsecondary institution with a religious affiliation provided the home study student can satisfy the DEP Eligibility Requirements. A publicly funded high school student at an approved independent school with a religious affiliation may do the same....

Because qualified independent religious schools are not categorically excluded from the DEP and face no additional burdens not imposed on secular approved independent schools, the DEP Eligibility Requirements are neutral as applied to religion. Plaintiffs have therefore not demonstrated a violation of their constitutional rights giving rise to irreparable harm.

Free Exercise Challenge To Vermont's Dual Enrollment Program Moves Ahead

In A.M. v. French, (D VT, Dec. 29, 2019), a Vermont federal district court refused to dismiss plaintiffs' claim that Vermont's administration of its Dual Enrollment Program for high school students violates their right to free exercise of religion.  Vermont pays tuition for high school students to take a limited number of courses at colleges.  While public school, home schooled and private non-sectarian school students may participate in the program, students at religious high schools are not eligible. The court held in part:

Because Plaintiffs have plausibly alleged that the DEP Provision is not neutral and generally applicable, the burden shifts to Defendant to prove that the State's enforcement of the DEP Provision withstands strict scrutiny....

The State's intent appears to be ... the avoidance of using public fundes to subsidize religious worship. A state's "policy preference for skating as far as possible from religious establishment concerns" is not a state interest of the highest order because "achieving greater separation of church and State than is already ensured under the Establishment Clause of the Federal Constitution ... is limited by the Free Exercise Clause." Trinity Lutheran, 137 S. Ct. at 2024....

The court also rejected as adequate other justifications offered by the state for the exclusion of religious school students. (See prior related posting.)

Suit Challenges Vermont's Exclusion of Parochial High Schools From College Enrollment Program

Suit was filed this week in a Vermont federal district court challenging on free exercise and equal protection grounds Vermont's exclusion of students attending private religious high schools from the state's Dual Enrollment Program.  The complaint (full text) in A.M. v. French, (D VT, filed 1/20/2019), focuses on the state's program that allows high school students at public and private secular schools, but not religious schools, to take college courses at public expense. ADF issued a press release announcing the filing of the lawsuit.

Vermont Legislators Join Fight Against Mormon Utopian Village Plans

The NewVistas Foundation is a non-profit organization promoting the building of model communities based on writings of Mormon prophet Joseph Smith.  NewVistas wealthy founder David Hall is buying up land in Provo, Utah and near Joseph Smith's birthplace in Vermont to create two of these villages. As reported in 2016 by Bloomberg Businessweek :

Hall is a fourth-generation Mormon. “Joseph Smith was just the wildest guy out there,” he says. “Lots of things he did were stupid, but in my view, he was a sage or a seer and didn’t even understand what came to him.” As the story goes, the plat plan appeared to Smith while he was studying Enoch, an Old Testament prophet who designed a city so perfect it was whisked off to heaven. The text accompanying the blueprint, written out by Smith and his comrades, says each plat should house 15,000 to 20,000 people within one square mile (though the definition of a mile has changed slightly), and that the design should be replicated worldwide. Written in the style of 15th century English, it reads: “When this square is thus laid off and supplied, lay off another in the same way, and so fill up the world in these last days, and let every man live in the city, for this is the city of Zion.”

These plans have stirred opposition, and in Vermont (as reported this week by AP) a resolution opposing the planned village has been introduced in the Vermont House of Representatives.  HR 20 (full text) introduced March 21 with 12 co-sponsors, says in part:

the NewVistas project would destroy the traditional and compacts settlement pattern in the four towns, convert large amounts of productive agricultural lands and forestland into development, undermine the historic character of these towns, degrade the area’s natural resources, and reduce game and wildlife populations.

Wife's Religious Convictions Do Not Override Vermont Divorce Law

In Maghu v. Singh, (VT Sup. Ct., Jan. 12, 2018), the Vermont Supreme Court rejected a wife's attempt to obtain dismissal of a no-fault divorce petition filed by her husband.  The couple was married in India and, among other contentions, the wife argued that Vermont's courts should defer to Indian divorce law. In rejecting that contention, the court said in a footnote:

We reject wife’s argument that the court’s grant of a no-fault divorce contrary to India’s Hindu Marriage Act, and the religious requirements reflected therein, impinges on wife’s free exercise of religion in violation of Chapter I, Article 3 of the Vermont Constitution. Quite the opposite, it would be constitutionally problematic, to say the least, if we began to decline access to a divorce from an otherwise qualified domiciliary on the basis of the religious convictions of the other party.