also allow private religious school students to access those same benefit on equal terms the us supreme court affirmed this principle as recently as this past summer and espinosa as does a panel of this court when it entered the appellate injunction earlier and this case this court should do the same three critical facts highlight the agent seen religious discrimination st when age applied to program benefits she was expressly denied because quote right is a religious school it comes from a local government official and that official said that the age was denied because he attends quote a religious high school and  of course your honor the agency has tried to blame local school officials for it discrimination but in reality the buck stopped with the agency it runs it runs the door of all my program and is responsible for any discrimination in its a the program has mandated and individualized the test not and which these local school official make decisions that affect program eligibility and i think an example might bear this this out your honor  take the federal real id requirement for air travel imagine that the federal government made if they id card the only acceptable form of real id but the federal government allows individual states the criteria for obtaining that id now suppose once they are people of a certain race from getting those id there's simply no way that the federal government could have forced id requirement as to affect the travelers from that state just because i'm a constitutionally apply that same requirement know about unlawful discrimination and can intervene but do nothing and here your honor the discrimination thing the secretary should have known the creech urias that the districts were using to just make public funding decisions is responsible for those decisions i mean is there evidence in the record that the secretary was aware of those and there's reason for that one certainly secretaries presume to know about from up the current court precedent that mandates an individualized the test and about the public to ition decision but also the agency itself has made countless statement that public no your honor the public funding requirement and certainly this too concerned only religious school students and spending districts and as applied to public funding requirement and the dot in the do able to exclude religious uses of funds from its funding decisions and to sometimes the record here it seems like districts are deciding whether a school has knitwear a chapel services or something like that why can't we read those things in the record as a district deciding whether the tuitions dollars or the public phones are also really going to support religious worship directly and that's the determination they're making and that's to colleges and universities and that highlights a very interesting the distinction about this program the state would bar religious school students from accessing door and almost on that back and it would allow a public specular school student to attend a clearly discriminated against based on the religious character of her school in violation of the free exercise clause nd ages injuries traceable to and regrettable by the state of vermont and secretary french because it is vermont state law that impose a structural burden on student from discriminating on the basis of religious data and only out educational benefits but that's exactly what happened to a tier her district denied her request for tuition to her local catholic school because it was a religious school the district court found that that was  only you know takes time and effort and mock the on the part of the student but also gives a rd party i give the district a track on whether or not they can get that question there's something in state law that compels the district to work with the student to put in place potential use issues in the translation for him there are potentially he said she was right because there there there is some talk about chapel and paper altars and paying for religious education there are sort of mock issues now there at the time jewish program is not an issue in this case the united states ges case to the university of vermont for science classes so there's really no question or as a religious offer as a religious school to participate in the dual enrollment program is the state not providing some kind of the benefit to the religious schools and funding districts to to these religious schools we don't we don't know why and the state says and there's no reason to question this that they the district are not required to report that information to the state i would assume that that would you know in further discovery if that would be fleshed out more asterisk makes the decision to provide public funding you're saying that the state would have an obligation to scrutinize every one of them to see if it puts an extra burden on religious schools why can't state is making a determination that if you there are a ban on secure in schools or some kind of inquiry about adequate safeguards and you have to judge that against the government interest the minister of the country should program on the one hand or in this case be interested in ministering to  establishes a public educational program in which the state of vermont case from school students at the two college classes that expanding the student receives were college and high school credit as a public educational program the dorm room a program is they open to students who are already members of the publicly funded educational set so this includes students at public high schools as well as students at private high schools provided that their private high school tuition is already publicly funded by the local school district in which they live it is this publicly funded tuitions requirement of the remark to in rome statute that appellate contend constitutes religion religious discrimination as applied to a districts are deciding that religious schools just can't participate as a categorical matter or they're applying some kind of test as to whether the school is so pervasively six hereon that adequate safeguards can be applied but in either one of those cases the government is making an inquiry specifically about the religious status of the school isn't it well any inquiry that is being done is deemed by local of education and so as not your piggybacking on those decisions but but surely you'd agree with what opposing counsel said which is that if a school district were making funding decisions based on race or something  case if there is any religious discrimination being carried out at the local level by school districts the state or mom is ready to address that in the form of a ministry of review by the state board of education and own subject as well as you said a moment ago that if in fact school districts were giving up funding on the basis of race or something else that that's what we discriminatory you couldn't just say well that's their determination and we're going to rely on that criterion for purposes of participations movement would you i mean would you say if you knew that the districts were saying only white students and sending districts get public funding then you can well ok we can use that discrimination and that would be a violation of law and certainly there would be the power by the state of vermont to address and remediate that discrimination right here with regard to the chapel or something then it's just an eligible for a look funding isn't that an evaluation of the character of the institution there's no attempt to say well you could attend the institution but we're dogma or kind of another word instruction that is designed to induce it really isn't isn't the presumption of the supreme court in it's been news when it said that the state doesn't have the same interest in excluding religious education from public funding that it doesn't excluding the education of ministers to court implicitly saying that you can't make that equivalence between religious education and religious worship i'm not sure i read it that way i think that  distinction between students and religious schools as an institution in particular activities like religious worship or religious education but as i look at the record in this case it seems that the way that this antiquities on status if the records suggest that the way it's being operationalized based on status isn't that a problem what we don't have a clear picture in the record before is how exactly this in a town holding its being operational like with the local district statement made by the email from the school server pendant that's on the record i'm not sure if that's the complete rationale but it standing alone it is a bit troubling in terms of suggesting discrimination based on religion that is but that is not you just said it was troubling so if the secretary who makes the certification for the womb and program knows that the only reason that h is not publicly funded as a student ascending district is because injunction against the secretary so that she doesn't apply the public funding requirements to her and you just said that the public funding requirements he needs to have excluded her because of her religious status so isn't she obliged not to apply that to year would need to fulfill that publicly funded requirement and be publicly funded requirement in and of itself is facially neutral as to religion and perhaps more importantly operates in a religious freedom in a way and that's they have to decide whether there's adequate safeguards and that's a secret that specific to religious schools but if it's a generally applicable rule that incidentally excludes religion they specifically look at each religious school make it public think well i don't know what the local districts do it may well be that local districts determine on their own get an adequate safeguards to prevent public funding for religious worship is simply having the religious school certify that we will not use any of these public funds to support our religious activities that would not involve a government inquiry even on a local level into religious practice or worship but really the one the most important fact in this appeal that is really never students in sending districts to go to religious schools get public funding because the government decides that they are at a school that is not to preventively sectarian isn't that still a governmental evaluation of the religious status of the school in your hypothetical that could be something that the local district a local school district which is a distinct legal entity that has the capacity to sue and be sued that's a determination they're made in and that under the vermont remark statutory structure the agency of education is the defendant you happily in this case has no legal authority to intervene and veto encounter a man these local district district tuitions funding decision to the state or the education at this point the district the school board of education would have its own independent legal council given the role of the of the agency of education in this litigation so i'm not sure that what may have been said in two thousand and fifteen will necessarily hold today but the state board of education is an independent governmental body that makes its own decisions as to whether my question is would it be eligible for public funding under certain circumstances absolutely ok but but that's not the criteria that you use now for the g p program right it's actually see a public funding funds as opposed to just eligibility could public funds underside or other circumstances correct right some portion of the private high school students to ition through the private school whether it be secular tuitions actually be publicly funded and i'm not aware of any circumstance in the past where it was sufficient for the private schools to attend a private school that was eligible for public funding because that would defeat the whole underlying purpose of the statutory scree scheme which is that a roman is a public educational program reserved for those students who are already members of the publicly funded educational system that's and that's what's the purpose of that requirement in the senate districts so you keep saying the purpose is people who already get public funding but if the reason that somebody is not getting public funding history is that it is related in some way by the vermont legislature to this idea that reserving to on roman eligibility to people who are already members of the public responded educational system in vermont that that serves the policy goal weight out in activity eight to encourage better college attendance patterns by all students but particularly by groups who are under represented in terms of college separate standard there and there is anybody who is publicly funded at their independent school and that doesn't have any kind of a titan the right everybody in the sending district is eligible for that subsidy to go to  in sending districts it's not really based on need is it it might be based on religion well i i would take issue with that your honor in that if one looks at the actual language of the dorm room and statute the publicly funded jewish a requirement applies to all private high school students whether they attend a private secular or private religious school and whether or not they live in a sandy or a nonsense being district that's an argument made by the appellant in their brief that there is somehow in the tend that's cool and if you're in a sending district it means you get public funding at whatever school you choose to attend and there's you can apply it uniformly across those three types of districts right because in a district that just isn't a public it doesn't make any sense to say somebody who attends the public school in that district so it's got to be applied in a different way across the three types of school districts doesn't well all i can say is that the publicly funded tuitions requirement for private school education applies that requirement in the numerous instances the document in the record where a student living in a non tending district that is a district that operate the public high school and attended a private secular high school has reached out to where it demonstrates that under the law to me that really cannot be said that the burden or adverse effect of this publicly funded through issue requirement falls exclusively or almost exclusively on religious school student it's simply not true as a matter of fact e districts were making like race based classifications or something that was explicitly discriminatory i mean if only sending districts districts were using race base criteria to decide who should get public funding and you would fit that discrimination could be excused because in the other two types of districts there are nondiscriminatory criteria because anyone can attend the public school wou initially pay attention to what districts are doing when they have extra discretion well no i wouldn't make that argument in that case race discrimination all i can say is that in this case if there are instances of religious discrimination going on at the local level and it's by no means established how prevalent that is given the large numbers of students from sandy districts but you have there are two ways to religious schools funded if that were in the going on  do automatically get program benefit because there is no religious or barrier affecting that student but when they age go through that thing process and exactly like what happened entering the lutheran age received a categorical bar or a bar based on her religious got it but no other student and her school district faced with an unfairness built into the prestigious or and sending district and the counsel for the secretary just admitted that if local school officials made funding decisions based on race the secretary would have to address that discrimination the situation is no different and the discrimination is based on religion rather than race and i think that the what we the government officials doing here and ending to their excluding religious school students from accessing program benefits and into doing school officials are whatever test they're applying we know what the effect of that test is as judge walker just that that test that to exclude religious schools do that all together or at the very dressing discrimination in the context of public funding decision which is you can take an appeal to the state board and so should a bill herself and that option sort of trying she would make a kind of collateral attack on but the agency is declining to give age that opportunity only because the per school is religious that a child not be singled out because of her faith yet we see that's exactly what's happening here in this case