In a recent lawsuit filed in Vermont, the plaintiff – Victory Baptist Church – had an outcome befitting its name. The church won a victory, albeit in an opening round, over Vermont’s attempt to treat religious institutions, and their ministries, as second-class citizens.
The church has operated The Ark Preschool since 1996. The preschool is well run; it has enjoyed a top “4 star” rating from the state for many years. Although connected with a church, the preschool is run as a secular operation. It has no religious instruction, and its curriculum is undisputedly “non-religious” (in the school’s own words). The school enjoys a strong reputation in the community, and hundreds of children have benefitted from its programs.
All was well with the program until 2014, when the state modified its funding regulations and the process through which preschools apply for a 4 star rating from the state. When the school applied for its rating to the state’s Agency of Education, it certified that its program was (as it had always been) non-religious.
But the state, without any explanation, denied the school’s request – essentially threatening the school’s ongoing existence. Not giving a reason for its decision is, by itself, an improper government action. One can only surmise what the local bureaucrat had in mind in saying no after all these years. But the state’s insistence that the program be non-religious gives a strong hint to what may be happening here. Namely, the state does not want to approve a “non-religious” preschool because it is owned and operated by a church. That likelihood led ADF Allied Attorney Anthony Duprey to file suit against the state.
This case is reminiscent of another – one that we argued before the U.S. Supreme Court this past April. In that case, Trinity Lutheran Church of Columbia v. Comer, the state of Missouri denied Trinity Lutheran preschool a grant to resurface its playground, simply because the preschool is run by a church. This grant was open to all nonprofits, and Trinity Lutheran was ranked fifth out of 44 applicants. But even though the state awarded 12 grants, Trinity Lutheran was not among them.
A common misguided reasoning behind these type government actions is that no aid of any sort can be provided to a religious institution – even to one carrying out a secular purpose that the government generally approves of in other contexts. There is a litany of common excuses, such as “money is fungible,” and support for a neutral or non-religious program frees up church money for other distinctly religious purposes.
But this kind of misguided view has been soundly and continuously rejected by courts. Churches get the same kinds of neutral services that all community users enjoy: the fire department will fight fires on their property; the police will investigate a crime at a church; and the town will pave roads leading to church parking lots. The contrary view is not the benign neutrality that the Supreme Court has always called for, but rather hostility against a church by singling it out for less than fair treatment.
That’s what a judge in Vermont thought as well, when he granted the church’s motion challenging the state’s decision. Churches are entitled to participate in neutral programs, and the court pointed out that the state’s failure to give reasons (other than some kind of general disapproval of churches) was improper. Indeed, churches are an essential part of community life. The Agency of Education will be given another chance to correct its decision, which would bring the matter to a happy and proper conclusion. Let’s hope they get it right this time and that a positive outcome for Trinity Lutheran at the Supreme Court will give them extra motivation to do so.
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