A U.S. Supreme Court decision handed down last week may have implications for Vermont’s school voucher program and other state education initiatives that currently exclude religious schools.
In a 5-4 decision in Espinoza v. Montana Department of Revenue, the court held that the state’s ban on families applying state tax credit scholarships at religious schools unconstitutionally violated religious freedom. The Institute for Justice, the libertarian law firm that brought the case before the Supreme Court, has already said it will next target the Green Mountain State.
Mill Moore, the executive director of the Vermont Independent Schools Association, said his organization believes the ruling could see public tuition dollars potentially flow to about 19 religious schools that currently cannot receive students through the town tuitioning program.
Instead of operating their own schools, 38 districts in Vermont currently provide families with vouchers to attend the public or private high school of their choice. Moore said he estimates 500 or so students could wind up using vouchers at religious schools, given where the schools are located in the state.
“This is philosophically big. But in terms of impact on Vermont, likely, small,” he said.
The Espinoza decision will likely also impact other state education programs, including vouchers that families can use at both private and public pre-kindergarten programs. Religious schools also are restricted from participating in the state’s dual enrollment program, which pays for high school students to earn college credits.
The dual enrollment program is the subject of a pending federal lawsuit, filed last year by the Alliance Defending Freedom, a Christian legal group, which argued the program was discriminatory because it doesn’t include parochial schools.
U.S. District Court Judge Christina Reiss in late May denied the Catholic school students who brought the suit a preliminary injunction. In June, the students, who attend Rice Memorial High in South Burlington, filed their notice of appeal with the 2nd Circuit.
“(Espinoza) powerfully bolsters our clients’ position that Vermont’s widespread practice of excluding religious schools and their students from its programs violates their Free Exercise rights under the First Amendment,” ADF senior counsel John Bursch said in a statement.
But Peter Teachout, a professor at Vermont Law School and expert on the Vermont and U.S. constitutions, says Espinoza’s impact on the Green Mountain State isn’t cut-and-dried.
“It’s a different type of constitutional provision,” he said.
The Montana Constitution includes what’s often referred to as a “no-aid” provision, Teachout said, which blanketly bars public funds from going to religious institutions. The Vermont Constitution, on the other hand, includes a “compelled support” clause, which protects people from having their taxpayer dollars used to support religious indoctrination or worship.
U.S. Chief Justice John Roberts’ opinion for the majority “makes a very big deal” of the difference between such constitutional provisions, according to Teachout. One prohibits taxpayer funds from going to religious institutions, no matter the use of those funds. The other prohibits taxpayer dollars from paying for explicitly religious purposes.
“You can make distinctions based on the use of taxpayer dollars. But you can’t make distinctions based on the status of the recipient,” he said.
That means that any state law that simply forbids religious entities from participating in public benefits likely run afoul of the ruling, he said. But more nuanced guardrails could stand.
“If state law or state policy says tuition dollars shall not be used to support religious indoctrination, essentially religious courses of instruction at any private school, then it is not at all clear that Espinoza would prohibit the state from imposing those restrictions on taxpayer dollars,” Teachout said.
Asked about the SCOTUS decision at the governor’s press conference Wednesday, Secretary of Education Dan French hadn’t yet had a chance to review the decision or its applicability to the state.
“The decision is based on circumstances in Montana, and specifically, their constitutional construct, which is no doubt different than Vermont’s,” he said.
Correction: This story has been updated to clarify Mill Moore’s comments. He said that about 500 students in districts that offer choice might use vouchers at religious schools, not that 500 students in total participate in town tuitioning. It was also updated to include data about school districts that offer choice for high school.
