The pre-K bill — which would make good on the governor’s pledge to expand access to early education — was diverted today to the Judiciary Committee for deliberation on an unforeseen legal quandary.
Several lawmakers and the Vermont ACLU are concerned that the state may inadvertently be funneling public funds to religious institutions. The pre-K bill prompted this fear, but Agency of Education officials say it’s possible this already happens.
Under current law, school districts that don’t offer pre-K will sometimes voluntarily enter into contracts with parents, in which the district pays the child’s tuition at a public or a qualified private pre-K program.
The Agency of Education doesn’t keep track of the private pre-K providers that receive public funding — it leaves contract arrangements up to the individual school district. Brad James, education finance manager for the Agency of Education, said, under this system, it’s plausible that some districts contract out with religiously affiliated pre-K programs.
If public dollars are put towards religious instruction, that’s a clear violation of the Vermont Constitution, which states that no person should be compelled to support a place of religious worship, and the case law that’s followed.
A Vermont Supreme Court case from over a decade ago was dredged up today to shed some light on the issue. In Chittenden Town School District v. Vermont Department of Education, the court ruled that the Chittenden School District had violated the Vermont Constitution by providing public funds to sectarian schools. The justices, however, did not weigh in on the question of whether or not public funds can be sent to religious schools if the money doesn’t actually go towards religious instruction.
The ACLU is raising questions about the constitutionality of arrangements such as a pre-K programs operating out of church basements. The legal precedent in these instances is murkier.
Allen Gilbert, executive director of the Vermont ACLU chapter, says there is still a constitutional conflict, and it all depends on how you define religious instruction. The education of a 3- or 4-year-old is “fundamentally different” from that of an older child, Gilbert argues.
“These are kids whose curriculum is everything around them. We are concerned that even if there is no religious education — prayers, songs or reading about religion — that simply being in a building where there are crosses and altars and elements of religious ceremonies is something like a curriculum for a child,” Gilbert told VTDigger.
Rep. Brian Campion, D-Bennington, who sits on the House Education Committee, said the situation is a “crystal clear” violation of the separation between church and state even if the money is used towards rent rather than facilitating a religious education.
“If you are going to rent out a space or a classroom, and if these are public dollars, then they are going into the coffers of a religious institution, and they are going to pay for a myriad of things, and that, to me, is a violation of church and state.”
There are currently pre-K programs that rent space in church basements, but neither Gilbert nor Campion could comment on the prevalence of religious pre-K programs or whether or not any receive public funds.
H.270 passed out of the Education Committee before the crossover deadline and has since made its way to the Ways and Means Committee, where it is still under review. It was briefly rerouted today so that the Judiciary Committee could weigh in on how to remedy the issue.
H.270 makes it mandatory for districts to provide tuition vouchers, and it establishes a statewide tuition rate. Even in districts where public pre-K is available, parents could opt for a voucher and place their child in a prequalified private program or a different public program. In other words, the state’s 3- and 4-year-olds can avail themselves of full school choice.
Private providers must meet certain qualifications in order to receive public money through the voucher system, and H.270 sets up a public database that will list all prequalified providers.
It is somewhat unusual to include language in legislation that states what is already implicit in all state law — that it cannot conflict with the Constitution. But in deference to the concerns about roll-out of the pre-K voucher program, there is now new language in H.270, backed by the Judiciary Committee, that directs the Secretary of Education to screen all providers in the voucher system to determine if they are providing religious education and to make sure public funds are not spent in way that conflicts with either the U.S. Constitution, the Vermont Constitution or Vermont case law.
That creates more work for the agency, James said, but it’s doable.
