A federal appeals court judge has ruled that three Vermont school districts cannot, for now, exclude Catholic school students from the state’s voucher system.
Whether that decision will stick, and what it means for the state’s decades-long prohibition on spending public funds at religious schools, remains to be seen.
But a series of rulings suggest Vermont may soon find out whether two constitutional principles — one enshrined in the U.S. Constitution, the other in Vermont’s — can indeed 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 “town-tuitioning” program is unconstitutional. Districts that don’t have their own schools have been allowed to “tuition out” students to private or public schools. Eighty-one towns across the state offer the school choice option, which is paid for by taxpayer dollars.
One of the suits 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 New England Classical Academy in Claremont, New Hampshire. The other was lodged by the Alliance Defending Freedom, a Christian legal group, on behalf of families seeking to obtain tuition payments for students at Rice Memorial High School in South Burlington.
Both lawsuits came in the wake of a U.S. Supreme Court case this summer, Espinoza v. Montana Department of Revenue, which was widely expected to have major implications for school choice programs nationwide. In the 5-4 decision, the court held that Montana’s ban on families applying state tax credit scholarships at religious schools unconstitutionally violated religious freedom.
The precedent-setting case slapped down so-called Blaine amendments in state constitutions, which prohibit taxpayer-funded benefits flowing to religious entities solely because they are religious.
Writing for the majority, U.S. Supreme Court Chief Justice John Roberts was careful to argue that Montana had violated the Free Exercise Clause because it had denied funds based on the recipient’s status, and left open the possibility that states might still regulate the use of taxpayer funds.
That distinction is the reason why it is still an open question whether Vermont’s own church-and-state constitutional protection — its “compelled support clause” — will withstand Espinoza.
The framers of the Vermont Constitution believed that “no person ought to be forced to make a contribution to the propagation of religious opinions with which he fundamentally disagrees,” said Peter Teachout, a constitutional law professor at Vermont Law School.
“I think there’s got to be some way to at once respect the compelled support clause and the underlying principle … and the Free Exercise Clause, which says you can’t discriminate against religious institutions simply because of their religious status,” he said.
But these cases could test that. And if they wind up before the nation’s highest court, that could be bad for Vermont.
“I think the current Supreme Court would be inclined to come down on the Free Exercise Clause, which would have the impact of basically nullifying the compelled support clause in the Vermont Constitution,” he said.
Where Vermont draws the line
Vermont has blocked taxpayer funding for students attending religious schools based on a 1999 landmark Vermont Supreme Court case. In Chittenden Town School District v. Department of Education, the justices ruled the district had violated the compelled support clause when it allowed tuition funds to be paid to a religious school “in the absence of adequate safeguards against the use of such funds for religious worship.”
Attorneys for the plaintiffs in both cases have pointedly noted that, for more than 20 years since the Chittenden decision, the state did not bother to elaborate what such “adequate safeguards” might look like. Instead, it has generally denied requests from religious groups to participate in public education programs, and advised school districts paying tuition to do the same.
In a ruling Jan. 7 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 tuition reimbursement requests to schools solely because they are religious.
“That means the court must order the school defendants to refrain from denying the plaintiffs’ tuition reimbursement requests solely because of (Rice’s) religious affiliation, but it must tread no further in determining how the decision should be made,” she wrote.
A week later, the Agency of Education issued guidance on what those safeguards might look like.
“Vermont school districts may pay tuition to religiously affiliated schools and may not discriminate against an organization on the basis of religion or the organization’s religious character or affiliation,” agency officials wrote in the memo. But if they did so, the state said, districts could request “written certification from each approved independent school that accepts tuition to the effect that public funding will not be expended for worship, religious instruction, or proselytization.”
Just a week later, the courts weighed in again. At the request of the plaintiffs, Second Circuit federal appeals court judge Steven Menashi issued an emergency injunction — pending appeal — ending the families’ exclusion from the Town Tuition Program. The injunction request will now be reviewed by a three-judge “motions panel,” which is scheduled to consider the matter again next Tuesday.
In his two-paragraph order, Menashi, a controversial Trump appointee, said simply that the plaintiffs had established a “substantial likelihood” they would prevail because the districts had denied their tuition reimbursement request “solely because of (Rice’s) religious affiliation.”
Awkward position
Michael Clark, superintendent of the Grand Isle Supervisory Union, which includes two of the school districts named in the case, said Tuesday the districts had not yet distributed any tuition money to Rice, but “it is very likely that we are looking at changing practice based on those rulings.”
Teachout said Menashi’s order puts districts in an awkward position. Pay tuition to Rice, “in a context where the tuition is being used to support religious instruction and worship,” and a school could run the risk of violating the Vermont Constitution. Don’t pay tuition, he said, and a school could run afoul of the Espinoza case and Menashi’s order.
Teachout says school districts should adopt a policy that all private schools — regardless of religious affiliation or status — be required to certify that public tuition money will not be used to support religious programming or worship. That’s in line with the agency’s recent guidance, which elaborates on that certification process.
But Rice “pretty much has a policy of pervasive religious instruction and worship throughout the entire program,” he said.
The Catholic school may very well choose to certify that it’s not using public funds for religious programming, Teachout said. Or “they could simply bring a challenge in court, saying that this requirement of providing certification violates their free exercise rights.”
Attorneys for the plaintiffs in both cases suggested they might opt for the latter.
“Any attempt to make a school or a religious student jump through extra hoops to obtain the same benefits that our neighbors receive is unconstitutional,” said Alliance Defending Freedom attorney Ryan Tucker.
The Institute for Justice case has moved, for the time being, from the courts to the State Board of Education, where families can appeal a school board’s decision to deny them a 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 guidance.
“Our view is that they’re imposing burdens on religious schools that they’re not imposing on nonreligious schools. And that’s discrimination, plain and simple,” he said.