The decision allows students in religious schools to have access to vouchers. Now what?

Rice High School
Rice Memorial High School in South Burlington is at the center of a lawsuit filed on behalf of families seeking payment of tuition fees for students. Photo by Jim Welch / VTDigger

A federal appeals judge ruled that three Vermont school districts cannot, at this time, exclude Catholic school students from the state’s voucher system.

It remains to be seen whether this ruling will stand and what it means for the state’s decades-long ban on spending public funds on religious schools.

But a series of rulings suggest Vermont may soon find out whether two constitutional principles – one enshrined in the US Constitution, the other in Vermont – can actually coexist.

Vermont is currently defending itself in court against two separate lawsuits brought by two powerful national conservative legal groups. Both cases argue that the exclusion of religious schools from the state’s “municipal education” curriculum is unconstitutional. Districts that do not have their own schools have been allowed to “educate” students in private or public schools. Eighty-one cities across the state offer the choice of school option, which is paid for by taxpayer dollars.

One of the lawsuits was filed by the Institute for Justice, a libertarian legal group, on behalf of families seeking to send their children to Mount St. Joseph Academy in Rutland and the New England Classical Academy in Claremont, New Hampshire . The other was filed by Alliance Defending Freedom, a Christian legal group, on behalf of families seeking tuition fees for students at Rice Memorial High School in South Burlington.

Both lawsuits came following a US Supreme Court case this summer, Espinoza v. Montana Department of Revenue, which is expected to have major implications for school choice programs nationwide. In Decision 5-4, the court ruled that Montana’s ban on families from applying state tax credit scholarships to religious schools unconstitutionally violated religious freedom.

The precedent-setting case rejected the so-called Blaine Amendments in state constitutions, which prohibit taxpayer-funded benefits to religious entities solely because they are religious.

Writing for the majority, U.S. Supreme Court Chief Justice John Roberts was careful to assert that Montana violated the free exercise clause because it denied funds on the basis from status, and left open the possibility that states could still regulate use taxpayer funds.

This distinction is why the question of whether the church’s own constitutional protection and state of Vermont – its “mandatory support clause” – will resist Espinoza is still an open question.

The Vermont Constitution draftsmen believed that “no one should be coerced into contributing to the propagation of religious views with which he fundamentally disagrees,” said Peter Teachout, professor of constitutional law at Vermont Law School.

“I think there has to be a way to respect both the mandatory support clause and the underlying principle … and the free exercise clause, which says you can’t discriminate against religious institutions just because of their religious status, “he said.

But these cases could test that. And if they end up in the highest court in the land, it could be bad for Vermont.

“I think the current Supreme Court would be inclined to rule on the free exercise clause, which would essentially nullify the mandatory support clause in the Vermont Constitution,” he said.

Where Vermont draws the line

Vermont blocked taxpayer funding for students attending religious schools on the basis of a Landmark Vermont Supreme Court case in 1999. In Chittenden Town School District v. Department of Education judges ruled that the district violated the mandatory support clause by allowing the payment of tuition fees to a religious school “in the absence of adequate safeguards against the use of those funds for religious worship.” . “

Lawyers for the plaintiffs in both cases have made it clear that for more than 20 years since the Chittenden decision, the state has not bothered to explain what such “adequate safeguards” might look like. Instead, he generally refused requests from religious groups to participate in public education programs and advised school districts paying tuition to do the same.

In one January 7 decision in the Alliance Defending Freedom case, federal judge Christina Reiss wrote that while the court would “overstep its authority” if it imposed its own set of “adequate safeguards”, school districts could not deny claims for reimbursement tuition fees to schools just because they are religious.

“This means the court must order the school’s defendants to refrain from denying plaintiffs’ tuition reimbursement claims solely on the basis of (Rice’s) religious affiliation, but it must not go any further. away to determine how the decision should be made, ”she wrote.

A week later, the Education Agency directives issued what these guarantees might look like.

“Vermont school districts may pay tuition fees to schools affiliated with a religion and may not discriminate against an organization on the basis of religion or religious character or organization affiliation,” officials wrote. of the agency in the note. But if they did, the state said, districts could request “written attestation from every approved independent school that accepts tuition that public funds will not be spent on worship, the religious instruction or proselytism “.

A week later, the courts ruled again. At the request of the plaintiffs, the judge of the Federal Court of Appeal of the second circuit, Steven Menashi, issued a emergency injunction – pending appeal – ending the exclusion of families from the city’s education program. The injunction request will now be considered by a three-judge “motions committee”, which is expected to reconsider the matter next Tuesday.

In his two paragraph commission, Menashi, a Trump named, simply said that the plaintiffs had established a “substantial probability” that they would win because the districts had refused their request for reimbursement of tuition fees “solely because of (Rice’s) religious affiliation.”

Uncomfortable position

Michael Clark, superintendent of the Grand Isle Supervisory Union, which includes two of the school districts named in the case, said Tuesday that the districts had not yet distributed money for tuition fees to Rice, but “it is very likely that we are looking at a change in practice. based on those decisions.

Teachout said Menashi’s order puts the districts in a difficult position. Pay the tuition to Rice, “in a context where tuition is used to support religious education and worship,” and a school could run the risk of violating the Vermont Constitution. Don’t pay school fees, he said, and a school could violate the Espinoza case and Menashi’s order.

Teachout says school districts should adopt a policy that all private schools – regardless of affiliation or religious status – are required to certify that public tuition fees will not be used to support religious programs or cults. This is in line with recent agency guidelines, which specify this certification process.

But Rice “practically has a policy of ubiquitous religious education and worship throughout the program,” he said.

The Catholic school could very well choose to certify that it does not use public funds for religious programs, Teachout said. Or “they could simply bring a challenge in court, claiming that this requirement to provide certification violates their free exercise rights.”

Lawyers for the plaintiffs in both cases suggested that they might opt ​​for the latter.

“Any attempt to blow a school or religious student through extra hoops to get the same benefits our neighbors are receiving is unconstitutional,” Defending Freedom Alliance attorney Ryan Tucker said.

The case of the Institute for Justice has so far passed from the courts to the National Board of Education, where families can appeal a school board’s decision to deny them tuition reimbursement. A hearing has not yet been scheduled, but David Hodges, an attorney for the families, expressed a similar sentiment regarding the agency’s latest guidelines.

“Our view is that they impose burdens on religious schools that they do not impose on non-religious schools. And it’s discrimination, outright, ”he said.

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