The U.S. Supreme Court ruled Tuesday that a Maine school tuition program unconstitutionally discriminated against religious schools — a decision that is widely expected to have a broad impact in Vermont, which operates a similar tuition system.
“‘Significant’ is an understatement,” Jared Carter, a professor at Vermont Law School, said of the decision’s expected repercussions in Vermont.
In rural, sparsely populated Maine and Vermont, many towns are not large enough to operate their own public schools. So the states offer families public dollars to send their children to schools, both public and private, elsewhere.
But there was a key restriction: students in Maine were barred from using that public tuition money at schools that did not provide a secular education. (Some religious schools were allowed because they met state educational standards.)
In 2018, a group of parents challenged that Maine program, saying they were being discriminated against because they could not receive public money to send their children to private religious schools.
On Tuesday, the U.S. Supreme Court’s conservative supermajority sided with those parents, saying, effectively, that Maine’s program violates the Constitution’s free exercise clause, which guarantees the right to practice one’s religion freely.
In that case, called Carson v. Makin, the court held that the state could not award some parents a “public benefit” — tuition money — while in other cases “denying the benefit based on a recipient’s religious exercise,” Chief Justice John Roberts wrote in the 6-3 decision.
“There is nothing neutral about Maine’s program,” Roberts wrote. “The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion.”
A distinction without a difference
The decision is reverberating across Vermont’s educational world.
Over the past few years, Vermont towns that send students elsewhere for their education — often known as “sending towns”— have operated in a gray area when it comes to paying tuition at religious schools.
A 2020 Supreme Court ruling affirmed that religious schools are eligible for public tuition dollars. But in Maine, officials tried to draw a distinction between a school’s religious affiliation and its religious practices.
The idea was that, although religious schools could not be automatically disqualified from receiving public dollars, state officials could withhold money if a school intended to use it for worship or explicitly religious instruction.
But Tuesday’s ruling “says that’s a distinction without a difference,” said Carter, the Vermont Law School professor.
“Under this ruling, Vermont will not be able to prohibit funding for religious schools based on either their status or religious affiliation, or on whether they provide religious instruction,” he said.
The decision is likely to open the door for more students to use taxpayer money to attend religious schools, some of which may hold values that are offensive to many Vermonters.
The ruling also has raised concerns that Vermont taxpayers will be forced to pay into a system that funds schools that discriminate against LGBTQ+ students and educators.
“This decision means our tax bills will increase to pay more tuition dollars to schools that openly compare LGBTQ neighbors to people who commit bestiality and incest,” Rebecca Holcombe, former Vermont secretary of education and a candidate for Vermont House, said in a text message.
That’s a reference to Grace Christian School, a Bennington private school whose handbook previously equated bestiality and homosexuality, which it called “offensive to God.” The school has received at least $7,250 in public tuition dollars. (School administrators there say the handbook has since been edited, and a state investigation found the school ultimately did not engage in discrimination.)
A spokesperson for the Vermont Agency of Education declined to comment on the Supreme Court ruling.
“It’s a devastating ruling for Vermont public schools and for all American public schools,” said Don Tinney, the president of the Vermont chapter of the National Education Association, a teachers union. “It’s quite disturbing to see this activist Supreme Court dismantling the wall between church and state. We have never before seen the Supreme Court force states to fund religious education.”
The dictates of conscience
But in Vermont, the legal landscape is further complicated by the state’s constitution. That document contains a clause that prohibits Vermonters from being forced to support a religion that is “contrary to the dictates of conscience.”
That places Vermont’s tuition program in a tight spot. A district that declines to provide tuition money to a religious school could violate the U.S. Constitution, under the Supreme Court’s ruling Tuesday. But sending public dollars to that school might violate taxpayers’ “dictates of conscience” — and thereby violate the Vermont Constitution.
“As I read it, the primary consequence is that Vermont’s going to have to change its current program,” said Peter Teachout, also a law professor at Vermont Law School.
One extreme, and likely controversial, strategy would be to cut off public funding to independent schools entirely.
Teachout also suggested a solution in which the state draws up contracts with approved independent schools and requires that they adhere to certain rules, such as barring discrimination against LGBTQ+ students, in order to receive public money.
“The court decision today in the Maine case has nothing to do at all with a state’s ability to say (that) state taxpayer funds cannot be used by schools that violate state or federal anti-discrimination policy,” he said.
This spring, Vermont’s Senate passed a bill that would have taken a similar route. But that proposed legislation died in the House, after lawmakers opted to wait for the Supreme Court’s decision in the Maine case.
Sen. Brian Campion, D-Bennington, the chair of Vermont’s Senate Education Committee, expressed frustration that lawmakers had backed away from the bill, which he had sponsored.
“Anyone who’s been awake for the past decade saw this (ruling) coming,” he said. “And this is what Senate Education tried to start to address this year.”