For years, the Williamses, a family in Chittenden, have sent their children to Mount St. Joseph Academy.
In Vermont, many school districts pay tuition for students to attend private schools, known as independent schools, elsewhere in the state. Because religious schools were ineligible for public money, Heather and Joseph Williams paid tuition at the Rutland Catholic school out of pocket.
But in 2020, after the U.S. Supreme Court ruled that religious schools could not be barred from receiving public money simply because of their religion, Heather Williams contacted her school district to ask: Would the district pay tuition at a religious school?
That question is at the heart of a new lawsuit trying to loosen restrictions on public money in religious schools — and a Vermont Senate bill trying to tighten them.
“We really need the court to just definitively rule on the constitutionality of the restrictions on tuition use,” said Paul Schmitt, an attorney representing the Williamses in the lawsuit, “so that these families can kind of just move on with their lives and be treated equally with their neighbors.”
‘Impermissible hostility towards religion’
Through Vermont’s voucher system, some students in “sending towns” — communities that, like Chittenden, don’t operate schools at every grade level — can receive public funds to pay tuition at independent schools elsewhere.
But for years, religious schools were not eligible for that money. In 1999, the Vermont Supreme Court determined that school districts could not pay tuition to religious schools without “adequate safeguards” against that money going toward religious purposes, such as worship or religious instruction.
Instead of defining “adequate safeguards,” Vermont simply barred religious schools from receiving public tuition money.
That changed last February when a federal appeals court, citing the 2020 Supreme Court decision, ruled that Vermont could not bar schools from tuition payments simply because they are religious.
After that decision, in June 2021, Heather Williams contacted the Barstow Unified Union School District board to ask if the district would pay tuition for two of their children, identified in the complaint as E.W. and J.W., to Mount St. Joseph Academy.
The family sought tuition reimbursement for the 2020-21 and 2021-22 school years.
That request put school officials in a bind. Although courts had determined that religious schools were now eligible for public money, officials had provided few guidelines on how that money should be paid out.
“Unfortunately, the Agency of Education has not provided clear guidance or standards for school boards in Vermont to establish such required adequate safeguards,” Rutland Northeast Supervisory Union Superintendent Jeanne Collins wrote to Heather Williams, according to correspondence filed with the court.
Collins, whose supervisory union includes the Barstow Unified Union School District, did not reply to an email and phone call seeking comment.
For months, district officials deliberated over how to handle the situation, according to documents filed with the lawsuit. Ultimately, the district agreed to pay this year’s tuition — minus any scholarships received by E.W. and J.W. — but not last year’s.
The decision to provide only partial tuition for 2021-22 and none for 2020-21 prompted the Williamses to sue.
“Defendants denied the Williamses tuition funds simply because they choose to send their children to a religious school,” the complaint read. “Defendants’ exclusion demonstrates impermissible hostility towards religion.”
The suit was filed Thursday in Vermont’s district court by the Alliance Defending Freedom, a well-funded and influential Christian advocacy group, on behalf of the Williamses and the Roman Catholic Diocese of Burlington.
Schmitt, the attorney for the Williamses, is asking the court to “enter a declaratory judgment declaring that denying students’ access to the Town Tuition Program based on the religious status, activities, and speech of their schools violates … the United States Constitution.”
Lawmakers push for restrictions
The suit was filed one day before the Senate Committee on Education voted to advance S.219, which — contrary to the Williamses’ lawsuit — would tighten restrictions on public money in religious schools.
That bill would bar religious schools from using public tuition dollars “to support religious instruction, religious indoctrination, religious worship, or the propagation of religious views.”
It would also prohibit those schools from engaging in any sort of discrimination or from turning away children in need of “special education services” if they had been placed at the school.
“I want to make sure that we’re protecting LGBTQ students and others,” education committee chair Sen. Brian Campion, D-Bennington, said in an interview last month. “And I also think we have to put some guidelines and some boundaries around how public dollars are used.”
The bill is now headed to the Senate Appropriations Committee and could reach the Senate floor next month, according to Campion.
The committee’s unanimous vote came after a coalition of educational organizations — representing principals, superintendents, school boards and the teachers union — endorsed a more far-reaching approach: barring private schools from receiving public money completely.
“The best approach for the State to take to address the issues in (the bill) is to fund only public schools,” the executive directors of the groups said in testimony submitted to lawmakers Thursday. It was clear, the groups said, that “funding private schools requires the State to navigate a morass of complicated legal and logistical issues.”
The school organizations noted that, as written, the bill does not “provide for a robust enforcement mechanism” and that it was unclear who would be responsible for holding schools to the requirements.
But others see the bill as too restrictive. An attorney representing the libertarian advocacy group Institute for Justice, which represented plaintiffs in the 2020 Supreme Court case, said last month that an earlier draft of the bill was “very likely unconstitutional” and “would likely result in one or more lawsuits against the State of Vermont.”
Schmitt, the Alliance Defending Freedom lawyer, agreed.
“The fact that they’re even trying this is just — it’s a waste of everybody’s time because it’s going to get struck down in a court,” he said.
The legal landscape could change soon, too. The U.S. Supreme Court is weighing a case filed in Maine, which has a voucher system similar to Vermont’s. That case will decide whether Maine’s religious schools are eligible for public funds — a decision that would likely reverberate in Vermont.
But Campion, the chair of the Senate Education Committee, said the uncertainty should have no bearing on the legislation.
“The committee really understands that it’s always a bad idea to create legislation in fear of what may or may not end up in the courts,” he said.