21-87
A.H. v. French

                             In the
                 United States Court of Appeals
                      FOR THE SECOND CIRCUIT

                             AUGUST TERM 2020
                                No. 21-87

                                 IN RE A.H.

A.H., BY AND THROUGH HER PARENTS AND NATURAL GUARDIANS, JAMES
HESTER AND DARLENE HESTER, JAMES HESTER, INDIVIDUALLY, DARLENE
 HESTER, INDIVIDUALLY, ROMAN CATHOLIC DIOCESE OF BURLINGTON,
    VERMONT, C.R., BY AND THROUGH HER PARENTS AND NATURAL
     GUARDIANS, GILLES RAINVILLE AND ELKE RAINVILLE, GILLES
  RAINVILLE, INDIVIDUALLY, ELKE RAINVILLE, INDIVIDUALLY, E.R., BY
 AND THROUGH HER PARENTS AND NATURAL GUARDIANS, CHAD ROSS
    AND ANGELA ROSS, CHAD ROSS, INDIVIDUALLY, ANGELA ROSS,
  INDIVIDUALLY, A.F., BY AND THROUGH HER PARENTS AND NATURAL
   GUARDIANS, DANIEL FOLEY AND JULIANE FOLEY, JULIANE FOLEY,
            INDIVIDUALLY, DANIEL FOLEY, INDIVIDUALLY,
                            Petitioners,
                                       v.
    DANIEL M. FRENCH, IN HIS OFFICIAL CAPACITY AS SECRETARY OF THE
    VERMONT AGENCY OF EDUCATION, MICHAEL CLARK, IN HIS OFFICIAL
      CAPACITY AS GRAND ISLE SUPERVISORY UNION SUPERINTENDENT,
     SOUTH HERO BOARD OF SCHOOL DIRECTORS, CHAMPLAIN ISLANDS
     UNIFIED UNION SCHOOL DISTRICT BOARD OF SCHOOL DIRECTORS,
        JAMES TAGER, IN HIS OFFICIAL CAPACITY AS FRANKLIN WEST
    SUPERVISORY UNION SUPERINTENDENT, GEORGIA BOARD OF SCHOOL
                              DIRECTORS,
                              Respondents. *


*   The Clerk of Court is directed to amend the caption as set forth above.
                 On Petition for a Writ of Mandamus

                     SUBMITTED: FEBRUARY 2, 2021
                      DECIDED: FEBRUARY 3, 2021
                     OPINION ISSUED: JUNE 2, 2021



Before:      JACOBS, SULLIVAN, AND MENASHI, Circuit Judges.

      In Vermont, some school districts do not operate public high
schools. Pursuant to Vermont’s Town Tuition Program (“TTP”), these
“sending districts” pay tuition to independent schools on behalf of
high-school-aged students residing in the districts. The statutory
provisions governing the program provide that each student is
entitled to select the independent school of his or her choice. The
petitioners in this case applied to their respective sending districts for
tuition funding under the TTP, but their requests were denied.

      The petitioners brought suit seeking injunctive relief, claiming
that the denials violated their rights to the free exercise of religion
under the First Amendment. On a motion for a preliminary
injunction, the district court found that the school districts—
endeavoring to comply with a state constitutional provision—denied
the petitioners’ funding requests solely because of the religious status
of the petitioners’ chosen school. Following Supreme Court
precedent, the district court ruled that the exclusion of the petitioners
from the TTP violated the First Amendment, and the district court
granted a preliminary injunction in the petitioners’ favor. The scope
of that injunction, however, was limited. The district court refused to
enjoin the school districts from maintaining the funding denials it had

                                    2
held unconstitutional. Rather, in light of the respondents’ desire to
develop new criteria for TTP eligibility that would satisfy the state
constitution, the district court merely enjoined the school districts
from continuing to exclude the petitioners from the TTP based solely
on the religious status of the petitioners’ chosen school.

      The petitioners appealed that decision and moved for an
emergency injunction pending appeal that would grant the relief the
district court omitted from its preliminary injunction. We construed
this motion as a petition for a writ of mandamus directing the district
court to amend its preliminary injunction. Because the petitioners
clearly had a right to the relief they requested and mandamus was
justified to enable them to obtain that relief, we GRANTED the
petition by an order issued on February 3, 2021, which noted that an
opinion would be forthcoming. This opinion explains the reasoning
for that order.

      Judge Menashi also files a concurring opinion.



             David A. Cortman, Alliance Defending Freedom,
             Lawrenceville, GA (John J. Bursch and Paul Daniel
             Schmitt, Alliance Defending Freedom, Washington, DC;
             Ryan J. Tucker, Alliance Defending Freedom, Scottsdale,
             AZ; and Thomas E. McCormick, McCormick, Fitzpatrick,
             Kasper & Burchard, P.C., Burlington, VT, on the brief), for
             Petitioners.

             Jon T. Alexander, Assistant Attorney General (Benjamin
             D. Battles, Solicitor General, and Rachel E. Smith,
             Assistant Attorney General, on the brief), Office of the
             Attorney General, Montpelier, VT, for Thomas J. Donovan


                                   3
             Jr., Attorney General of Vermont, for Respondent Daniel M.
             French.

             William F. Ellis (Kevin J. Coyle, on the brief), McNeil,
             Leddy & Sheahan, P.C., Burlington, VT, for Respondents
             Michael Clark, South Hero Board of School Directors,
             Champlain Islands Unified Union School District Board of
             School Directors, James Tager, and Georgia Board of School
             Directors.



MENASHI, Circuit Judge:

      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, 

, 2019 (2017) (internal quotation marks omitted). 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, 

, 2255 (2020). 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” and that a state cannot justify discrimination against religious
schools and students by invoking an “interest in separating church
and State more fiercely than the Federal Constitution.” 

 (internal quotation marks omitted).




                                   4
      The officials who administer Vermont’s Town Tuition Program
(“TTP”)—respondents here—nevertheless continued to discriminate
against religious schools and students in violation of the First
Amendment. When a student resides in a school district that does not
maintain a public high school, the TTP entitles that student to a tuition
payment to attend the independent high school of his or her choice.
The individual petitioners in this case, who reside in such districts,
applied for TTP payments to attend Rice Memorial High School
(“Rice”). The school districts denied their requests on the ground that
Rice is a religiously affiliated school. According to the school districts,
the petitioners could receive tuition payments under the TTP only if
they chose to attend a secular school instead.

      The petitioners brought suit challenging the discriminatory
denials and sought a preliminary injunction that would end their
exclusion from the TTP. Unsurprisingly, the district court concluded
that the petitioners had satisfied the necessary elements and were
entitled to a preliminary injunction—and the district court entered
such an injunction. A.H. ex rel. Hester v. French (French I), No. 2:20-CV-
151, 

, at *8, *10-12 (D. Vt. Jan. 7, 2021). “The scope of
[the] injunctive relief, however,” was “limited.” 

. The district
court enjoined the school districts only from excluding the petitioners
based on the precise rationale on which the districts had previously
relied; the court declined to mandate that the districts allow the
petitioners to participate in the TTP until the case was resolved. 

. The district court reasoned that it would be improper to provide
the full relief the petitioners sought before the respondents had an
opportunity to develop new criteria for TTP eligibility that would
satisfy Vermont’s constitution, which the Vermont Supreme Court
has interpreted as prohibiting public funding for “religious

                                    5
education.” 

; see Chittenden Town Sch. Dist. v. Dep’t of
Educ., 

, 562 (Vt. 1999). In the meantime, the school
districts could, and did, continue to exclude the petitioners from the
TTP as long as they sought to attend Rice.

       The district court so ruled even though in the two decades since
the Vermont Supreme Court’s decision, neither the school districts
nor Vermont’s Agency of Education had ever developed any
alternative criteria for TTP eligibility. And Rice therefore never had
an opportunity to comply with any such criteria. Given the limited
scope of the district court’s injunction, the petitioners faced a new and
additional obstacle to accessing TTP benefits before the new school
semester began—an obstacle that resulted from the school districts’
and the state’s prior decision to rely on unconstitutional status-based
discrimination rather than attempt to develop narrower criteria in the
first place.

       The petitioners appealed the district court’s decision to limit the
scope of its injunction and moved for an emergency injunction
pending appeal that would prohibit the school districts from
continuing to deny their TTP funding requests. We construed this
motion as a petition for a writ of mandamus directing the district
court to amend its preliminary injunction. On February 3, 2021, we
granted the petition, ordering the district court “to amend its
preliminary injunction to prohibit the [respondents] from continuing
to deny the [petitioners’] requests for tuition reimbursement under
the TTP, regardless of [Rice’s] religious affiliation or activities.” Order
Granting Petition for Writ of Mandamus, Feb. 3, 2021 (ECF doc. 59)
[hereinafter Mandamus Order]. The order noted that an opinion would
be forthcoming. 

 This opinion explains the reasons for that order.


                                    6
                           BACKGROUND

      This case involves the intersection of the TTP, Vermont’s state
constitution as interpreted by its highest court, and the school
districts’ and the district court’s assessment of Rice.

                                     I

      We recently had occasion to describe the TTP in a similar case
involving some of the same parties to this litigation:

      [T]he Town Tuition Program is quite simple: If a school
      district provides elementary education, it is required to
      provide secondary education. While school districts have
      a number of options in meeting this obligation, they
      principally do so in one of two ways: (1) by maintaining
      a public high school within the district, or (2) by using
      public funds to pay tuition to an approved public or
      independent high school within or outside the district, to
      be selected by the parents or guardians of the student.
      Most of Vermont’s school districts … meet their
      obligations under the Town Tuition Program by
      maintaining public high schools. … Some school districts
      [commonly described as “Sending Districts”] …
      however, decline to maintain their own public high
      schools; they instead use public funds to pay for their
      students to attend approved independent schools or
      public schools in other districts.
A.H. ex rel. Hester v. French (French II), 

, 171 (2d Cir. 2021)
(internal quotation marks omitted) (citing 16 V.S.A. § 822). The TTP is
administered by the school boards of the individual school districts,
16 V.S.A. § 822(c)(2), with the ultimate oversight authority in
individual cases vested in the State Board of Education, 

 § 828.
Vermont’s Agency of Education (“AOE”) provides guidance

                                    7
regarding how the school districts should discharge their
responsibilities under the TTP. See French II, 

; French I,

, at *6 n.6. 1

       Sending Districts pay tuition to an “approved independent
high school … to be selected by the parents or guardians of the
student.” 16 V.S.A. § 822(a)(1). An independent school is “approved”
if it meets the state’s detailed requirements and educational
standards. 

 §§ 166(b), 906. A religious as well as a secular school
may be “approved,” see 

 and “[n]othing in the legislation
establishing the Town Tuition Program prohibits Sending Districts
from paying tuition to religious schools,” French II, 

.

                                     II

       In May 1996, the Chittenden Town School Board approved TTP
funding requests for students attending Mount Saint Joseph
Academy (“MSJ”), a religious high school. Chittenden Town, 

. In response, the Commissioner of Vermont’s Department of
Education—the predecessor official to the Secretary of the AOE—cut


1 The State Board of Education and the Agency of Education are distinct
bodies with different but overlapping roles. Compare 16 V.S.A. § 164 (setting
the general powers and duties of the State Board), with 

 § 212 (delineating
the duties of the Secretary of Education), and 

 § 11(a)(14) (“‘Agency of
Education’ means the Secretary and staff necessary to carry out the
functions of the Agency.”). Among his other duties, the Secretary of
Education must “execute th[e] policies adopted by the State Board,”
“[s]upervise and direct the execution of the laws relating to the public
schools and ensure compliance,” and “[s]upervise the expenditure and
distribution of all money appropriated by the State … for public schools.”

 § 212(5)-(6). The Secretary is also a nonvoting member of the State Board.

 § 161. Before 2013, the Secretary, then designated the “Commissioner,”
was an employee of the State Board. 16 V.S.A. § 211 (2012) (repealed 2013).

                                      8
off all funding to the Chittenden Town School District. 

.
Parents and the school district sued, and the case made its way to the
Vermont Supreme Court. The court ruled that the school district’s
tuition payments to MSJ violated the “Compelled Support Clause” of
Vermont’s constitution. 

. That clause provides that “no
person ought to, or of right can be compelled to attend any religious
worship, or erect or support any place of worship, or maintain any
minister, contrary to the dictates of conscience.” Vt. Const. ch. I, art. 3.
The court interpreted the language proscribing “compelled …
support [of] any place of worship” to prohibit any public funding not
only of worship services but also of “religious education.” 

. The court concluded that the Chittenden Town School District
violated the state constitution by paying tuition to MSJ without
“restrictions that [would] prevent the use of [that] public money to
fund religious education.” 

.

      The court noted, however, that the Compelled Support Clause
does not necessarily demand that “children who attend religious
schools may not receive public educational funding.” 

.
Rather, the Compelled Support Clause requires only that “public
funds may not pay for religious worship,” which the court construed
to include “religious education.” 

. Therefore, the court
said, Vermont school districts may fund tuition at a religious school
if there are “adequate safeguards against the use of [the public] funds
for religious [education].” 

. Yet the court “express[ed] no
opinion on how the State of Vermont can or should … craft a
complying tuition-payment scheme.” 

.

      “[I]n the more than twenty years since Chittenden Town was
decided, Vermont has neither amended the Town Tuition Program
nor identified adequate safeguards to ensure that Sending Districts
                                     9
do not use public funds to support worship at religious schools.”
French II, 

. Rather, the AOE and certain school districts
have apparently applied the Chittenden Town decision by adopting
either a blanket ban on funding tuition at all religious schools, see id.;
French I, 

, at *6 n.6, or a more limited—but similarly
status-based—ban on funding tuition at schools deemed to be
“pervasively sectarian” or “pervasively religious,” App’x 223-26,
245; 2 see French II, 

 (Menashi, J., concurring). 3

                                     III

       The Supreme Court has made clear that the prevailing practice
in Vermont—maintaining a policy of excluding religious schools from
the TTP—is unconstitutional. 4 Even so, the AOE and the respondent
school districts did not alter course. When the individual petitioners
applied to their local school districts for tuition payments for Rice, an
“approved independent school” under Vermont law, they were
rejected on the ground that Rice is a “religious” or “parochial” school.


2 Citations to “App’x” refer to the appendix the petitioners submitted with
their petition.
3 While “some Sending Districts have over the past twenty years used
public funds to pay tuition for eighty students attending religious schools,”
the “record does not show … whether these Sending Districts have
extended funding in violation of Chittenden Town or pursuant to the
presence of safeguards.” French II, 

.
4 See Espinoza, 

 (holding that, unless it can satisfy the
“strictest scrutiny,” a state may not “bar[] religious schools from public
benefits solely because of the religious character of the schools” even if the
state’s “goal” is to “ensur[e] that government aid does not end up being
used for ‘sectarian education’ or ‘religious education’ … particularly [at]
schools that believe faith should permeate everything they do”)
(alterations, emphasis, and internal quotation marks omitted).

                                     10
App’x 85-98; see also French I, 

, at *4-5. Furthermore, in
response to a funding request from another student, an AOE official
told a school district employee that the AOE’s “legal team” had
determined that “there is no change in a district’s ability to pay tuition
to a parochial school” after the Supreme Court’s decision in Espinoza.
App’x 119-20.

      The petitioners brought suit challenging their TTP funding
denials and sought a preliminary injunction ending their exclusion
from the TTP during the pendency of the case. The district court ruled
on the petitioners’ motion for a preliminary injunction on January 7,
2021, and concluded that the petitioners were entitled to a
preliminary injunction. The petitioners demonstrated a substantial
likelihood of success on the merits of their claim that the school
districts violated their rights to the free exercise of religion under the
First Amendment. French I, 

, at *10-12. They established
that they would suffer irreparable harm in the form of an ongoing
“loss of First Amendment freedoms.” 

 (quoting Elrod v. Burns,

, 373 (1976) (plurality opinion)). And the balance of the
equites and the public interest favored “securing [the petitioners’]
First Amendment rights.” 

 (quoting N.Y. Progress & Prot. PAC
v. Walsh, 

, 488 (2d Cir. 2013)).

      These conclusions would normally entitle a plaintiff to a
preliminary injunction that would “prevent … any further
perpetration of injury” pending an adjudication on the merits. Benson
Hotel Corp. v. Woods, 

, 696 (8th Cir. 1948); see Winter v.
NRDC, 

, 20 (2008). The district court, however, refused to
“order the School Defendants to honor Plaintiffs’ [Rice] tuition
requests.” French I, 

, at *12. The district court decided
that the school districts should have an opportunity to pursue
                                   11
compliance with Chittenden Town by developing restrictions on
religious   uses    of   TTP     funding—buttressed        by    “adequate
safeguards”—that might permit the school districts to fund Rice
tuition, at least partially, once those safeguards are in place. 

-
13. 5 The district court therefore issued a preliminary injunction
preventing the school districts “from denying [the petitioners’]
applications for Town Tuition Program reimbursement solely on the
basis of [Rice’s] religious status” but allowed the districts to develop
new use-based restrictions on TTP funds. 

. Following the
district court’s issuance of the preliminary injunction, the school
districts could, and did, continue to exclude the petitioners from the
TTP.

                                     IV

       On January 15, 2021, eight days after the district court issued its
decision, the petitioners appealed to this court and moved for an
emergency injunction pending appeal. The petitioners explained that
the upcoming semester at Rice was set to begin on January 25 and the
school districts, consistent with the district court’s decision,
continued to exclude the petitioners from the TTP while working to
fashion adequate safeguards. On January 14, for the first time in over



5   In Espinoza, the Supreme Court declined to address whether
“discrimination against religious uses of government aid” would be treated
the same as “discriminat[ion] based on religious status.” 

(emphasis added). At the same time, the Court cautioned that nothing in its
opinion was “meant to suggest ... that some lesser degree of scrutiny applies
to discrimination against religious uses of government aid,” and that
“[s]ome Members of the Court, moreover, have questioned whether there
is a meaningful distinction between discrimination based on use or conduct
and that based on status.” 

twenty years, the AOE issued guidance to school districts regarding
how to fashion and implement adequate safeguards, and the school
districts claimed to need additional time to “digest” that guidance.
App’x 378. With the semester starting in a matter of days, the
petitioners asked this court to enter an emergency injunction
requiring the school districts to end the petitioners’ exclusion from
the TTP.

      On January 22, when the briefing on this motion was
complete—and the last business day before the new semester began—
an applications judge granted the motion temporarily, pending a
decision of the court. See Motion Order, Jan. 22, 2021 (ECF doc. 40).
On February 3, we construed the motion as a petition for mandamus
and ordered the district court “to amend its preliminary injunction to
prohibit the [respondents] from continuing to deny the [petitioners’]
requests for tuition reimbursement under the TTP, regardless of
[Rice’s] religious affiliation or activities.” Mandamus Order.

                            DISCUSSION

      Though the petitioners sought relief in the form of an
emergency injunction pending appeal, their request is better
understood as a petition for a writ of mandamus. In this case, the
district court decided all the relevant legal questions in the
petitioners’ favor, holding that they had a substantial likelihood of
success on the merits, that they would suffer irreparable harm in the
absence of injunctive relief, and that the balance of the equities and
the public interest favored securing their First Amendment rights.
The objection to the district court’s judgment is not that it erred on the
merits but that it failed to follow its own conclusions and properly
remedy the constitutional injury it identified. Therefore, as we have


                                   13
done before, we construed the petitioners’ motion as a petition for a
writ of mandamus ordering the district court to amend its order and
to provide the requested relief. See, e.g., Hong Mai Sa v. Doe, 

, 158-59 (2d Cir. 2005); Stein v. KPMG, LLP, 

, 758-59 (2d
Cir. 2007).

       The remedy of mandamus is “traditionally … used in the
federal courts only to ‘confine an inferior court to a lawful exercise of
its prescribed jurisdiction or to compel it to exercise its authority
when it is its duty to do so.’” Will v. United States, 

, 95 (1967)
(quoting Roche v. Evaporated Milk Ass'n, 

, 26 (1943)). 6 We
may issue a writ of mandamus only if: (1) the petitioners have “no
other adequate means to attain the relief [they] desire[],” (2) the
petitioners’ “right to issuance of the writ is clear and indisputable,”
and (3) we are “satisfied that the writ is appropriate under the
circumstances.” Cheney v. U.S. Dist. Ct., 

, 380-81 (2004)
(internal quotation marks omitted); see also United States v. Manzano
(In re United States), 

, 623 (2d Cir. 2019). For the reasons
described below, these criteria are met in this case.



6  In this traditional formulation, the term “jurisdiction” is not limited to its
“modern, technical [meaning], ‘i.e., the statutory or constitutional power to
adjudicate the case.’” Paul R. Gugliuzza, The New Federal Circuit Mandamus,
45 Ind. L. Rev. 343, 355 (2012) (alteration omitted) (quoting Steel Co. v.
Citizens for a Better Env’t, 

, 89 (1998)). “Rather, the [Supreme]
Court’s rule referred to a ‘more flexible notion of “power.”’” 

 (quoting
Note, Supervisory and Advisory Mandamus Under the All Writs Act, 86 Harv.
L. Rev. 595, 599 (1973)). In the mandamus context, “[i]f a district court ‘took
some definable action it was not empowered to take or refused to take some
definable action that was clearly required,’ the error was considered
‘jurisdictional,’ and mandamus would correct it.” 

 (alterations omitted)
(quoting Supervisory and Advisory Mandamus, 

                                    I

      The petitioners here have “no other adequate means to attain
the relief [they] desire[].” Cheney, 

. For starters, “the
district court has … foreclosed the relief” they request. Manzano, 

 (citing Kerr v. U.S. Dist. Ct., 

, 404-06 (1976)).
The petitioners seek to participate in the TTP during the current
school semester. Less than three weeks before the semester started,
the district court refused to enjoin the school districts from continuing
to exclude the petitioners from the TTP. Instead, it allowed the school
districts to maintain the exclusion while the districts took time to craft
“adequate safeguards,” something no official body in the State of
Vermont had ever attempted to do before. The district court thus
authorized the school districts to exclude the petitioners from the TTP
for an unspecified amount of time—extending into the upcoming
semester—and thereby foreclosed the petitioners from obtaining the
relief they now seek.

      Moreover, the petitioners cannot adequately obtain the relief
they seek “through the regular appeals process.” 

 (citing Cheney,

). Writs of mandamus generally “cannot be used as
substitutes for appeals, even though hardship may result from
delay,” but “special circumstances” justify the writ here. Bankers Life
& Cas. Co. v. Holland, 

, 383 (1953) (internal citations
omitted); accord Schlagenhauf v. Holder, 

, 110-11 (1964).
When a petitioner faces significant “irreversible, non-monetary
harm” if forced to wait for an appeal to run its course, mandamus
may issue to prevent that harm. In re Depuy Orthopaedics, Inc., 

, 353 (5th Cir. 2017). To determine whether the harm caused by a
delay is significant enough to justify mandamus relief, we give
consideration “to the severity and extent of this damage, and in

                                   15
particular to whether a petitioner has lost precious constitutional
rights.” In re Halkin, 

, 198 (D.C. Cir. 1979) (footnote
omitted), abrogated on other grounds by Seattle Times Co. v. Rhinehart,

 (1984); see also Beacon Theatres, Inc. v. Westover, 

,
511 & n.20 (1959) (approving mandamus to remedy a district court’s
ruling that “improperly denie[s]” the petitioner’s right to a jury trial);
U.S. Alkali Exp. Ass’n v. United States, 

, 204 (1945) (issuing
an extraordinary writ because of “[t]he hardship imposed on
petitioners by a long postponed appellate review, coupled with the
attendant infringement of [an] asserted Congressional policy”).

       In this case, mandamus is the only adequate remedy because
the “district court’s [order] … has caused and is continuing to cause
irreparable harm to [the petitioners’] First Amendment rights.” Pfizer
Inc. v. Giles (In re Asbestos Sch. Litig.), 

, 1286 (3d Cir. 1994)
(Alito, J.); 

 (holding that the petitioner lacked any “other
adequate means to obtain relief” because “[f]ailure to issue a writ [of
mandamus] … would subject [the petitioner] to a continuing
impairment of its First Amendment freedoms” as a result of the
district court’s order); see also Bridge C.A.T. Scan Assocs. v. Technicare
Corp., 

, 944 (2d Cir. 1983) (“Entry of an order that would
constitute a prior restraint on speech is an appropriate subject for a
mandamus petition.”). Without immediate access to the TTP pending
the resolution of their case at trial, the petitioners will remain
deprived of their constitutional right to the free exercise of religion.
The petitioners carried their burden to satisfy every requirement for
the issuance of a preliminary injunction providing the relief they
requested, and yet the district court failed to “exercise its authority”
to remedy the petitioners’ injury even though it was the district
court’s “duty to do so.” Roche, 

.

                                     16
      Furthermore, the unjustifiably limited scope of the district
court’s preliminary injunction effectively ensured that two petitioners
would lose the ability to attend Rice this semester. Those petitioners,
C.R. and E.R., cannot afford to attend Rice without access to TTP
funding. They will therefore suffer an additional irreversible injury if
they are forced to wait for the “regular appeals process” to run its
course. Manzano, 

. Under these circumstances,
“waiting” for the adjudication of an appeal “can hardly be described
as an ‘adequate means’ of relief eliminating the need for mandamus.”
Stein, 

 (quoting Cheney, 

).

                                    II

      The petitioners’ “right to issuance of the writ is clear and
indisputable.” Cheney, 

 (internal quotation marks
omitted). In circumscribing its preliminary injunction, the district
court clearly committed an “abuse of its discretion … [by] render[ing]
a decision that cannot be located within the range of permissible
decisions.” Manzano, 

 (quoting Linde v. Arab Bank, PLC,

, 107 (2d Cir. 2013)).

      Having concluded that the petitioners suffered status-based
discrimination when the school districts denied their TTP funding
requests, the district court was required to provide a remedy that
would “restore the victims of discriminatory conduct to the position
they would have occupied in the absence of such conduct.” Milliken
v. Bradley, 

, 746 (1974). The district court’s remedy,
however, allowed the petitioners’ constitutional injury to continue
unabated. No party disputes that the school districts would have
granted the petitioners’ funding requests for the past semester and for
the current semester if Rice were not religiously affiliated. Therefore,


                                    17
absent the school districts’ status-based discrimination, the
petitioners would have had this semester’s tuition covered by the
TTP. The district court’s preliminary injunction should have provided
that relief.

       Instead, the district court accommodated the school districts’
desire to comply with Chittenden Town. One might interpret
Chittenden Town as requiring only a use-based restriction on TTP
funds, but the school districts and the AOE have, for decades, applied
Chittenden Town through status-based exclusion of all religious or
pervasively sectarian schools from the TTP. And the school districts
maintained this discriminatory practice even after the Supreme
Court’s ruling in Espinoza. 7


7 In his opposition to this petition, French argues that much of the Supreme
Court’s opinion in Espinoza is not relevant to Vermont’s administration of
the TTP. French stresses that the Supreme Court “did not undertake to
definitively examine or characterize historic school funding practices
specific to Vermont” and that Vermont’s administration of the TTP is
guided by its highest court’s interpretation of a state constitutional
provision that dates to the Founding Era. Appellee Daniel M. French’s
Response to Appellants’ Emergency Motion for Injunction Pending Appeal
Under Fed. R. App. P. 8, at 12-15. We do not believe that the Free Exercise
Clause of the U.S. Constitution provides less protection against religious
discrimination in Vermont than it does in Montana or that Vermont has a
greater interest in refusing to fund religious education than Montana does.
The Supreme Court’s decision in Espinoza applies to all states. Moreover,
French offers no evidence for the proposition that Vermont—uniquely
among the states—has a “historic and substantial tradition” of refusing to
fund religious education in the context of programs such as the TTP.
Espinoza, 

 (internal quotation marks omitted). He relies
exclusively on Chittenden Town, which described a historic tradition in
Vermont of avoiding only “public support of churches and ministers.”
Chittenden Town, 

.

                                    18
       Considering this background, the district court was wrong to
allow the school districts to continue to withhold TTP funds from the
petitioners while the districts developed new restrictions and
safeguards. Not only did this decision ensure that the petitioners
would continue to be denied access to generally available public
benefits for an indefinite period of time; it also subjected the
petitioners to an additional burden resulting from the school districts’
prior status-based discrimination. Due to the district court’s
circumscribed preliminary injunction, the petitioners’ tuition
payments would be delayed while the school districts developed new
use-based restrictions and then further delayed while Rice figured out
how to comply with the yet-to-be-developed restrictions. Rather than
“prevent … any further perpetration of injury” pending an
adjudication on the merits, Benson, 

 the district court
ensured that the petitioners would remain injured by the school
districts’ prior unconstitutional discrimination. That decision “cannot
be located within the range of permissible decisions.” Manzano, 

.

                                     III

       Finally, we are “satisfied that the writ is appropriate under the
circumstances.” Cheney, 

. The petitioners have been
deprived of a public benefit as a result of the state’s and the school
districts’     decades-long    policy      of    unconstitutional    religious
discrimination. The AOE and the school districts maintained this
policy even after the Supreme Court squarely held that such
discrimination      violates   the   Free       Exercise   Clause.   In   these
circumstances, the respondents’ desire to adhere to Chittenden Town
must give way to the petitioners’ entitlement to be restored to the
position they would have occupied had the government not violated

                                     19
their rights under the First Amendment to the U.S. Constitution. See
U.S. Const. art. VI, cl. 2 (providing that the U.S. Constitution “shall be
the supreme Law of the Land; and the Judges in every State shall be
bound thereby, any Thing in the Constitution or Laws of any State to
the Contrary notwithstanding”).

                                     ***

       For these reasons, we granted the petition for a writ of
mandamus. At this point, the individual petitioners are entitled to
TTP funding to the same extent as parents who choose secular schools
for their children, regardless of Rice’s religious affiliation or activities.

       In the interest of judicial economy, any further appeals shall be
referred to this panel. See De La Rosa v. Holder, 

, 105 (2d
Cir. 2010); Philip Morris Inc. v. Nat'l Asbestos Workers Med. Fund, 

, 135-36 (2d Cir. 2000). 8




8 We also now deny the petitioners’ and the school districts’ motions to
supplement the record, filed on February 3 and 5, 2021. The motions contain
evidence of measures the AOE and the school districts took to implement
adequate safeguards after the district court issued its opinion. These measures,
which the petitioners’ motion brought to our attention before we issued our
order, did not impact our decision or cause us to reconsider it. We also deny
French’s motion to supplement the record, filed on February 17, 2021.

                                      20
21-87
A.H. v. French

MENASHI, Circuit Judge, concurring:

       As the court’s opinion explains, the district court failed to
provide the petitioners with the relief to which they were entitled, and
we therefore granted mandamus. I write separately to note two
additional reasons why mandamus was appropriate.

                                     I

       First, the district court denied relief to the petitioners based on
its own determination that religion so pervasively affected the
mission and curriculum at Rice Memorial High School (“Rice”) that
the school districts were justified in worrying that funding such a
school would violate the Vermont constitution. A.H. ex rel. Hester v.
French (French I), No. 2:20-CV-151, 

, at *5 & n.5, *12-13
(D. Vt. Jan. 7, 2021). This decision—that the petitioners should be
denied full preliminary injunctive relief because Rice’s religious
mission and curriculum justified extra precautionary measures—was
itself status-based religious discrimination. The district court
therefore rendered a decision that “cannot be located within the range
of permissible decisions,” supporting mandamus. United States v.
Manzano (In re United States), 

, 625 (2d Cir. 2019).

       In ruling on the motion for a preliminary injunction, the district
court considered the school districts’ claim that “it would be difficult,
if not impossible, to segregate religious education from secular
courses” at Rice. French I, 

, at *5. Earlier in the litigation,
the school districts had asked the district court to take judicial notice
of one page on Rice’s website which indicated that “Faith” was the
first of “The Four Pillars of Rice” and “is weaved into every aspect of
life at Rice.” App’x 331-32. The district court took notice not only of
this webpage but of Rice’s entire website and analyzed pages
describing Rice’s mission and curriculum. French I, 

, at
*1, *5. Based on its review of this material, the district court concluded
that Rice offers not only “secular educational courses” but also
“religious education” and that, therefore, the school districts could
not at that time be ordered to pay tuition to Rice in light of Chittenden
Town. 

. 1

       The district court’s refusal to remedy the school districts’ prior
status-based discrimination was thus premised on its determination
that religion pervaded Rice’s mission and curriculum such that the
school districts could not fund tuition at such a school without
imposing extra precautionary measures. By conditioning access to a
public benefit “on the degree of religiosity of the institution and the
extent to which that religiosity affects its operations, as defined by
such things as the content of its curriculum,” a state actor
“discriminates among religious institutions on the basis of the
pervasiveness or intensity of their belief.” Colo. Christian Univ. v.
Weaver, 

, 1259 (10th Cir. 2008). “This is discrimination
‘on the basis of religious views or religious status.’” 

(quoting Emp't Div. v. Smith, 

, 877 (1990)). Therefore, the
district court’s reliance on its sua sponte assessment of Rice’s mission

1 See French I, 

, at *5 & n.5 (“[Rice] offers secular educational
courses as well as courses offered by its ‘Religion Department’ including
‘Scripture,’ ‘Catholic Faith and Sacraments,’ ‘Morality & Social Justice,’
‘Catholicism Today,’ ‘Love and Life Choices,’ and ‘Art and Spirituality.’ ...
[T]hese materials remain relevant to the availability and scope of injunctive
relief.”); 

 (“This court cannot simply order the School Defendants
to honor Plaintiffs’ [Rice] tuition requests. To do so would be to ignore
ample evidence that at least some of the courses offered by [Rice] consists
of religious education.”).

                                      2
and curriculum to support its decision exceeded “a lawful exercise of
its prescribed jurisdiction.” Roche v. Evaporated Milk Ass’n, 

,
26 (1943). 2

       Before the district court, the school districts invoked a similar
“pervasively sectarian” test to justify the petitioners’ categorical
exclusion from the TTP, 3 arguing that “[t]he Vermont Constitution …
as interpreted in Chittenden, prohibits the use of public funds to
advance religious worship, and it is not possible to safeguard against
the use of those funds for that purpose given the sectarian nature of


2 The district court denied the injunctive relief in an effort to allow the
school districts to apply a use-based restriction. Yet “[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.”
Espinoza v. Mont. Dep't of Revenue, 

, 2256 (2020) (holding that
status-based discrimination against “some recipients, particularly schools
that believe faith should permeate everything they do,” cannot be justified
by a concern that “[g]eneral school aid … could be used for religious ends”
by those recipients) (internal quotation marks, alterations, and emphasis
omitted); see also A.H. ex rel. Hester v. French (French II), 

, 183 (2d
Cir. 2021) (holding that Espinoza’s rule against status-based discrimination
applies “[e]ven if [the government] was motivated by a desire to prevent
the use of public funds for religious worship”).
3 Under the “pervasively sectarian” test, “no state aid at all [may] go to
institutions that are so ‘pervasively sectarian’ that secular activities cannot
be separated from sectarian ones.” Roemer v. Bd. of Pub. Works, 

,
755 (1976); see also Meek v. Pittenger, 

, 365-66 (1975) (“Even
though earmarked for secular purposes, ‘when it flows to an institution in
which religion is so pervasive that a substantial portion of its functions are
subsumed in the religious mission,’ state aid has the impermissible primary
effect of advancing religion.”), overruled by Mitchell v. Helms, 

(2000). The Supreme Court has since rejected this test. See Mitchell, 

 (plurality opinion); 

 (O’Connor, J., concurring in the
judgment).

                                        3
Rice’s curriculum.” App’x 310 (emphasis added). In the briefing
before this court, however, French argues that neither his agency nor
school districts currently rely on a pervasively sectarian test and that
Chittenden Town does not require the exclusion of pervasively
sectarian schools. 4

      Ironically, despite French’s disavowal of a pervasively
sectarian test, the district court’s decision invites such a test. It
assumes that a school district may require a school to separate
“secular educational courses” from “religious education” so that the
district may cover “only the cost of secular educational expenses.”
French I, 

, at *5, *12. Such an approach would exclude
“pervasively sectarian” schools—which (either according to the
school’s own self-description or in a school district’s judgment) do not
distinguish secular from religious activities. Yet “nothing in the
Establishment Clause requires the exclusion of pervasively sectarian
schools from otherwise permissible aid programs, and other doctrines
of [the Supreme] Court bar it.” Mitchell v. Helms, 

, 829
(2000) (plurality opinion). In particular, applying a “‘pervasively
sectarian’ factor collides with our decisions that have prohibited
governments from discriminating in the distribution of public
benefits based upon religious status or sincerity.” 

.

                                   II

      Second, the writ of mandamus is “appropriate under the
circumstances,” Cheney v. U.S. Dist. Ct., 

, 381 (2004), not
simply because the district court prioritized “the respondents’ desire

4 Appellee Daniel M. French’s Response to Appellants’ Emergency Motion
for Injunction Pending Appeal Under Fed. R. App. P. 8, at 21 & n.6
[hereinafter French Opposition].

                                    4
to adhere to Chittenden Town” over “the petitioners’ entitlement to be
restored to the position they would have occupied had the school
districts not violated their rights under the First Amendment,” ante at
19-20. In doing so, moreover, the district court relied on the
questionable legal premise that the school districts could “fashion[]
appropriate safeguards” to delineate use-based restrictions on TTP
funding consistent with Chittenden Town and thereby cure the
constitutional problem with the previous policy. French I, 

 at *11-13 (internal quotation marks omitted). The district court
apparently concluded that creating such restrictions would be
straightforward and devoted little attention to whether those
restrictions would be permissible, stating only that “[b]ecause
Chittenden Town prohibits only religious use, it does not conflict with
Espinoza.” 

      Even a use-based restriction, however, would be subject to
strict scrutiny if it applied specifically to religious schools or to
religious conduct because such a restriction would “violate ‘the
minimum requirement of neutrality’ to religion.” Roman Catholic
Diocese of Brooklyn v. Cuomo, 

, 66 (2020) (quoting Church of
the Lukumi Babalu Aye, Inc. v. City of Hialeah, 

, 533 (1993)).
A policy “burdening religious practice that is not neutral or not of
general application must undergo the most rigorous of scrutiny.”
Church of the Lukumi, 

. To survive such scrutiny the
policy “must advance interests of the highest order and must be
narrowly tailored in pursuit of those interests.” 

 (internal quotation
marks omitted). A state’s “interest in separating church and State
more fiercely than the Federal Constitution … ‘cannot qualify as
compelling’” because “[a] State’s interest ‘in achieving greater
separation of church and State than is already ensured under the

                                    5
Establishment Clause is limited by the Free Exercise Clause.’”
Espinoza, 

 (quoting Trinity Lutheran Church of
Columbia, Inc. v. Comer, 

, 2022 (2017)) (alteration
omitted).

       The Establishment Clause does not require Vermont to avoid
funding religious education through the TTP. “[T]he Establishment
Clause is not offended when religious observers and organizations
benefit from neutral government programs.” 

. And “[a]ny
Establishment Clause objection” to TTP funds supporting religious
education would be “particularly unavailing because the government
support makes its way to religious schools only as a result of [parents]
independently choosing” specific schools for their children to attend.
Id.; see also Locke v. Davey, 

, 719 (2004) (“Under our
Establishment Clause precedent, the link between government funds
and religious training is broken by the independent and private
choice of recipients.”). At one point in its opinion, the district court
suggested that the TTP was not based on parental choice because the
governing statute “grants only a sending school board decision-
making authority.” French I, 

, at *12 (citing 16 V.S.A.
§ 822(c)(2)). Yet the school board may provide TTP funds to an
independent school only if the school is “selected by the parents or
guardians of the student.” 16 V.S.A. § 822(a). That the school district
actually dispenses the funds does not mean that funding decisions are
not attributable to parental choice. 5


5  See Aaron Saiger, Charter Schools, the Establishment Clause, and the
Neoliberal Turn in Public Education, 34 Cardozo L. Rev. 1163, 1198 (2013) (“It
is not as if the vouchers in Zelman or the scholarship in Witters involved
actual cash given to private parties, who then elected whether to send it on
to the school in which they enrolled; the programs involved paperwork, not

                                      6
       To be sure, the Supreme Court has “recognized a ’play in the
joints’ between what the Establishment Clause permits and the Free
Exercise Clause compels.” Espinoza, 

 (internal
quotation marks omitted) (quoting Locke, 

). But that
space is narrow. In order for a use-based exclusion to receive the less
exacting scrutiny the Supreme Court applied in Locke, that exclusion
must advance “a ‘historic and substantial’ state interest” or
“tradition.” 

 (quoting Locke, 

). And
Espinoza clarifies that, while there is “a ‘historic and substantial’ state
interest in not funding the training of clergy,” there is no comparable
interest or tradition of states declining to aid religious education more
broadly understood. 6

       French argues that “Espinoza never stated that ‘vocational
religious instruction’ was the only ‘distinct category of instruction’ or
‘essentially religious endeavor’ that government need not fund


tender.”); see also Zelman v. Simmons-Harris, 

, 655 (2002)
(upholding a voucher program “where state aid reaches religious schools
solely as a result of the numerous independent decisions of private
individuals”); Witters v. Wash. Dep’t of Servs. for the Blind, 

, 488
(1986) (upholding a scholarship program in which aid that “ultimately
flows to religious institutions does so only as a result of the genuinely
independent and private choices of aid recipients”).
6 Espinoza, 

 (“[N]o comparable ‘historic and substantial’
tradition supports [a state’s] decision to disqualify religious schools from
government aid. In the founding era and the early 19th century,
governments provided financial support to private schools, including
denominational ones. … Local governments provided grants to private
schools, including religious ones, for the education of the poor. Even States
with bans on government-supported clergy … provided various forms of
aid to religious schools.”) (quoting Locke, 

) (internal citations
omitted).

                                       7
without offending the Free Exercise Clause.” French Opposition 17
(quoting Locke, 

). Yet Espinoza did explain that only
a “historic and substantial” tradition would allow a government to
exclude religious conduct from generally available public benefits
without satisfying strict scrutiny. Espinoza, 

. And
Espinoza provided an account of the historical record according to
which there is no such tradition of excluding religious education at
high schools. 

 Neither the district court nor the respondents have
identified any evidence of a historic tradition of use-based restrictions
or “adequate safeguards” surrounding religious education. French
cites Chittenden Town as evidence of such a tradition. But that decision,
issued in 1999, identified a historic state tradition only of avoiding
“public support of churches and ministers.” Chittenden Town Sch. Dist.
v. Dep’t of Educ., 

, 553 (Vt. 1999).

      Any new religious use-based restrictions on TTP funds would
need to “advance interests of the highest order and ... be narrowly
tailored in pursuit of those interests.” Church of the Lukumi, 

 (internal quotation marks omitted). Yet the district court decided
that the petitioners should wait for relief until the school districts
developed such restrictions and relied on the school districts’ ability
to do so without recognizing the legal issues such new restrictions
would raise.

      The district court also assumed that the new restrictions could
distinguish religious from secular uses of funds such that tuition
could be “apportioned between secular and religious education.”
French I, 

, at *5. But an evaluation of Rice’s curriculum
to determine which courses and activities qualified as “religious
education”—including the district court’s own such evaluation—
would likely entail “intrusive judgments regarding contested
                                    8
questions of religious belief or practice” and thereby raise additional
concerns under the First Amendment. Colo. Christian Univ., 

; see also Mitchell, 

 (“[C]ourts should refrain from
trolling through a person’s or institution’s religious beliefs.”).

      Thus, the district court’s artificially limited preliminary
injunction resulted from a misapprehension of the applicable legal
standards and the ease with which the respondents could apply an
alternative policy that restricted religious uses of TTP funds. For these
additional   reasons,    mandamus       is   “appropriate    under    the
circumstances.” Cheney, 

.




                                    9