The Deeper Dig is a biweekly podcast from the VTDigger newsroom, hosted and produced by Sam Gale Rosen. Listen below, and subscribe on Apple Podcasts, Google Play, Spotify or anywhere you listen to podcasts.
A recent U.S. Supreme Court ruling struck down state-level rules that barred public money from going to schools that teach religious beliefs. According to some legal scholars, that decision has unique consequences for Vermont — and could require the state to rethink how it funds K-12 education.
The case, Carson v. Makin, started in Maine. Like Vermont, Maine uses a tuition system in towns that are too small to have their own public schools. Students in those towns get money from the state to be educated somewhere else: either a public school in another town, or a private school.
Maine did not allow families to use this tuition money at religious schools, where faith was a significant part of the curriculum. Parents sued, arguing it violated their freedom of religion. Last week, justices sided with the parents and struck down Maine’s restriction as unconstitutional.
That means Vermont’s system will likely also have to change. Yet Vermont has its own constitutional provisions addressing religious liberty — and now lawmakers have to find a way to navigate between the state and federal constitutions.
On this week’s podcast, Peter D’Auria, who covers education for VTDigger, and Peter Teachout, a professor at Vermont Law School with expertise in constitutional law, discuss the ramifications of the ruling.
Below is a partial transcript, edited for length and clarity.
Riley Robinson: Last week, the U.S. Supreme Court released a decision that could have a significant impact on Vermont’s education system. A group of parents from the state of Maine filed a lawsuit arguing they should be able to use public tuition money at schools with religious curricula.
The court basically said that if a state provides any public tuition for secular private schools, the state will also have to fund private, religious education. And according to some legal scholars, the decision has unique consequences for Vermont — and could require the state to rethink how it funds K-12 education.
Chief Justice John Roberts: We will hear argument first this morning in Case 20-1088, Carson v. Makin. Mr. Bindas?
Michael Bindas, attorney from the Institute for Justice: Mr. Chief Justice, and may it please the Court: Maine’s sectarian exclusion discriminates based on religion.”
Riley Robinson: My colleague Peter D’Auria, who covers education for VTDigger, has been following this case, and a handful of similar lawsuits.
Riley Robinson: Hi, Peter.
Peter D’Auria: Hey, Riley.
Riley Robinson: So just to start out, what is this case, Carson v. Makin? And what does it have to do with Vermont?
Peter D’Auria: So Maine has this program in which parents can use public taxpayer money for tuition to send their kids to private schools. Basically, if there’s not a public school close enough, you can get the state to fund you to go to a private one. So this program, up till now, had this restriction that that money could not be used if you wanted to go to a school that was providing a religious education.
So a few years back, a group of parents in Maine challenged this case, or challenged this program, saying that they were being discriminated against, because they could not use the money to pay for their kids to get religious education.
The parents are represented by the Institute for Justice, which is this libertarian public interest law firm.
People in Vermont have been watching this case pretty closely, because Vermont has a public tuition system that is very similar to Maine’s.
Riley Robinson: This case has prompted a lot of discussion around big, important, chewy questions, like how should we separate between church and state? And where are the bounds on freedom of religion?
But Vermont is likely the only other state, besides Maine, where this Supreme Court ruling will have material impact on a government program.
Riley Robinson: Can you walk me through how Vermont’s tuitioning system works right now?
Peter D’Auria: So Vermont, like Maine, is a very rural state. And there’s a lot of small towns that only have a few people, and a few school-aged kids that live in those towns. So it’s not feasible for all of these towns to operate public schools. So what Vermont does, is it will use taxpayer money to send those kids to schools outside of their town.
In Vermont’s system, these kids have a lot of leeway where they go. You can go to a public school in the neighboring town, you can go to a private school, you know, across the state. Some kids have even used it to go to private schools outside the state, or even outside the country.
In 2020 and 2021, which is the only year I have data for, there were about 6,000 students, roughly, that used public tuition money to go to schools outside of their town. So that includes public schools in other towns, and also includes private schools in other towns.
It was about half and half: half went to public, half went to private, roughly. And the whole tuition thing, as of that year, was about $50 million to send kids to private schools.
The state of Vermont spent more or less $50 million to send about 3,000 kids to private schools.
Riley Robinson: And then out of those students who went to private schools, about how many went to religious schools?
Peter D’Auria: So as of 2020-2021, it was only about a dozen, according to the data that I’ve seen. And that cost roughly $150,000.
Riley Robinson: OK. So that’s a very small percentage of Vermont’s tuitioning system. Tell me more about why this question of money to religious schools is so controversial.
Peter D’Auria: I think a lot of people in Vermont are concerned, and don’t like the idea that their taxpayer money that they pay into the school funding system could be used for religious education, could be used to teach kids, you know, Christian theology or theology from another religion. And there’s also been a concern that that taxpayer money is funding schools who might discriminate against, you know, potential students or potential employees or educators that are LGBTQ+.
Christopher C. Taub, Maine’s chief deputy attorney general: Maine has determined that, as a matter of public policy, public education should be religiously neutral.
This is entirely consistent with this Court’s holdings that public schools must not inculcate religion and should instead promote tolerance of divergent religious views. The Petitioners want an entirely different benefit, instruction designed to instill religious beliefs at taxpayer expense.
They are not being discriminated against, they are simply not being offered a benefit that no family in Maine is entitled to.
Riley Robinson: Justice Elena Kagan seemed to agree with this during oral arguments, which happened in December of last year.
Justice Elena Kagan: The state generally doesn’t have to subsidize exercise of a right. We can’t put you in jail for saying something. We also can’t deny you of an unrelated benefit for saying something. We can’t say you don’t get food stamps because we don’t like your speech. But that doesn’t mean we have to pay for your speech.
Riley Robinson: The plaintiffs in this case clearly didn’t see it that way. Their argument is pretty much, “Well all the other parents get public funding and they get to choose their kid’s secular school, but I can’t get funding for a religious school, where I want to send my child. So that’s discriminating against my family based on my religion. I don’t get this public benefit that these other families receive.”
There’s also a line of court cases that led us to this point in the Supreme Court. In 2020, there was this case called Espinoza v. Montana Department of Revenue. And the court basically said, a state can’t refuse public funds for a school just because it is operated by a religious organization, or what they called its “religious status.”
Peter D’Auria: So after that decision, there was sort of this idea that there would be what some people call it like a status-use distinction, which distinguishes between religious status, as in the school, you know, is religious versus religious use, which means the money — the public tuition money — is going to be used for worship, it’s going to be used for religious instruction, it’s going to be used for religious purposes.
Riley Robinson: OK. So it would have been OK in Maine if, let’s say the school was maybe founded by a religious organization, but delivered an education that was very similar to a public school. And that would have been OK, because it’s not, quote unquote, “religious use.”
Peter D’Auria: Right. So like a school that was maybe affiliated with the church, but had like a pretty, you know, a curriculum that was pretty similar to a public school curriculum.
Riley Robinson: But in this most recent case, Carson v. Makin, the plaintiffs pushed on that, and argued whether it’s religious use, or religious status, it doesn’t really matter — its all discrimination based on someone’s religion.
Michael Bindas: It is only because of religion that they are excluded. You can call that discrimination based on religious use. You can call it discrimination based on religious status. Call it what you will.
Either way, it is discrimination based on religion, and either way, it is unconstitutional. I welcome the Court’s questions.
Riley Robinson: The Supreme Court’s decision, which dropped this week, sided with the parents, against Maine.
We also called up Peter Teachout, a constitutional law expert at Vermont Law School, to ask him what this means here in Vermont, specifically.
Riley Robinson: OK, I think the sound is good on our end. Should I call you, Peter? Professor? What do you like to go by?
Peter Teachout: Ah, you can call me Peter. That’s not a problem. Yeah.
Riley Robinson: And it turns out while yes, Vermont is definitely impacted by this ruling, it’s a little more complicated because of the Vermont state constitution.
There is a significant difference between the situation in Maine and the situation in Vermont. And that difference is created by the fact in Vermont, there is a provision in the Vermont constitution — this is not true in Maine — there’s a provision in the Vermont constitution that prohibits local school districts and the state from providing taxpayer support, when that taxpayer support will be used to support religious worship or religious instruction.
That was not true in the Maine case. But that is true in the Vermont Constitution. So the question is, how can Vermont then comply with both the federal free exercise clause and the compelled support clause in the Vermont Constitution? That’s the crucial difference.
And at least at first blush, it seems to pose a very bleak choice for Vermont. Vermont can comply with both provisions, but it can only do so if it stops funding or providing tuition support to private or as we call them in Vermont, independent schools, entirely.
Riley Robinson: The compelled support clause is in Chapter 1, Article 3 of the Vermont state constitution — pretty high up. It says, “no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience.”
Peter Teachout: OK, now it’s really important to understand two things about the compelled support clause in the Vermont Constitution.
The first thing to know about it is it’s not just a clause of secondary or accidental importance. It forms one of the key pillars of the Vermont constitution. (It’s) one of the things that makes the Vermont Constitution unique.
The other provisions are like, Vermont was the first state to prohibit slavery. These all have to do with protecting personal liberty. Vermont was the first state to eliminate a property qualification for voting. Very democratic in that sense. The first constitution had two provisions in it actually protecting freedom of the press, because it wanted the press to be a watchdog on abuse of governmental power.
So when you look at all of those things together, including the protection of the right to conscience, in Article 3 of Chapter 1, you say that is what makes the Vermont constitutional order distinct. It’s distinctly protective of individual liberty. And it’s very democratic, in its basic thrust.
Riley Robinson: OK. So that central compelled support piece of the Vermont Constitution, how unique is that amongst other states? So I know you said Maine doesn’t have this, but is this really a Vermont-y thing, or…?
Peter Teachout: The first Vermont Constitution created an institution called the Council of Censors, composed of people who are elected on a statewide basis. But these were leaders, the great political leaders in the state. The council was charged with the responsibility of reviewing state legislation and determining whether or not that legislation was consistent with the state constitution.
And early on the legislature, not really understanding what any of the provisions meant, adopted something called the Ministerial Act, the state legislature did, and under the Ministerial Act, every town could choose to select its own minister. And in those days, the minister also served as the local school teacher.
And Vermont legislation required every taxpayer in town to support that minister, whether or not they believed in the particular version of religion that that minister taught. And that was objected to.
Riley Robinson: By the Council?
Peter Teachout: By a taxpayer who said, “Hey look, everyone else in town is a Presbyterian. But I’m a Baptist. I don’t believe that stuff. Can I be compelled?”
And so the legislature said, Well, we won’t compel you, but you have to come in and sign an affidavit saying I disagree with the majority religious view in town.
The Counsel of Censors took a look at that and said, that violates the right of conscience, because it requires somebody to stand up and declare, “My own religious views are different from those of a majority in the town.” And matters of conscience ought to be purely personal matters. The state has no right to get involved even in this very limited way. They recommended that the act therefore be repealed, and the legislature repealed it.
Riley Robinson: And that came from Vermont-specific history.
Peter Teachout: So in other words, the Council of Censors took a provision that probably could be found in some other state constitutions and gave it specific Vermont meaning. That’s why it forms together with these other provisions — what you call, Vermont-y.
The crucial thing, Riley, is that early Vermonters really were protective of rights of conscience, the right of every individual, to have his own beliefs about religious matters, and not have the state, in any way, interfere with the exercise of that right of conscience. And the most fundamental kind of violation of that right would be to require you or me to actually use our tax dollars to support the propagation of religious views of some religion with which we disagree.
So it’s a free exercise kind of provision, rather than what I call an anti-establishment type provision.
Riley Robinson: That’s freedom of exercise, sort of in the negative then. It’s the freedom not to participate.
Peter Teachout: Absolutely. And you can understand why that’s important. I mean, it’s one thing to come in and say to somebody, “You can’t exercise your beliefs as a Baptist or a Methodist or a Presbyterian.” It’s another thing, however, to come in and say, “You can do whatever you want but we’re going to require you to use your tax money to support the religious beliefs of this other denomination, with which you fundamentally disagree.”
Riley Robinson: But there’s another part to this in the state constitution that was a little surprising to me. Peter actually got a reader email about it.
Peter D’Auria: Someone emailed me today about the article that I wrote, and said a lot of not very nice things about me, which is fine — but they mentioned this other part of the compelled support clause, that says, something to the effect of, and I know you’ll say it better, but even though Vermonters cannot be compelled to support a religion contrary to the dictates of conscience, they should, like, make a point of being religious and doing religious things.
Peter Teachout: That is absolutely true.
Look, here’s the last phrase: “Nevertheless, every sect or denomination of Christians” — that’s what they put in. It’s still in there. It used to be Protestants, but now they’ve liberalized it, so Christian. So you know, what about Muslims, Jews? Not covered. Anyway — “But every sect or denomination of Christians ought to observe the Sabbath of the Lord’s day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God.”
Riley Robinson: Hold up, sorry. This is in the state constitution?
Peter Teachout: Absolutely. I have suggested that that probably ought to be struck down as violating the Establishment Clause, but it’s in there. But listen carefully. It doesn’t say every person ought to do that. It says every sect or denomination ought to, you know, ought to be active.
So the framers were not hostile to religion. But also that doesn’t say that particular individuals ought to, have a duty to worship God or anything. It just said, if you believe in God, and you belong to a denomination, you oughta do it seriously.
It is not anti-religion at all. It is very much pro-religion, but it also is pro individual conscience, deeply pro-individual, whatever your religious belief is, or what your non-religious belief is, is a matter of personal conscience and no state has a right to tell you what to believe, or to tell you to support the religious beliefs of others.
Riley Robinson: Mhm. So it sounds like this has left Vermont’s system with a very tough needle to thread.
Peter Teachout: It seems to present Vermont with that stark choice, whether to cut private schools out entirely. It — it seems there’s no other alternative if you want to comply with both provisions.
Are there other alternatives? I think there are. And I think they’re worth exploring.
But any practitioner and any legal scholar will tell you you’re operating in an area of constitutional law that is rapidly moving, and making predictions about what would survive or not survive constitutional challenge is just hazardous business.
But the primary alternative, available to Vermont, other than getting out the sledge hammer, and cutting parents out of tuition support if they want to send their kid to any private school, it seems to me to do something like what the Legislature was considering doing with Senate Bill 219. S.219.
Lt. Gov. Molly Gray, on the Vermont Senate floor: We have on the calendar for action S.219, an act relating to ensuring compliance with the U.S. and Vermont Constitutions in the use of public funds for tuition in the dual enrollment program.
Riley Robinson: This bill would have changed the structure of Vermont’s tuition system — so instead of operating like a voucher that goes to parents, the state would treat private schools like a private contractor. They’d sign a contract with a school for a certain number of seats.
Peter Teachout: It’s the way we decide, for example, which private companies are going to pave our highways in the summer. Those are private, OK? Use a contract system. And therefore, Vermont would enter into contracts with those schools it thinks are appropriate for providing public-funded support.
Riley Robinson: The idea was, that within those contracts, the state could require the school to follow anti-discrimination laws. The state could say, OK, you can’t discriminate against LGBTQ students or teachers, or you must agree to protect students’ freedom of speech while they’re at school.
The bill passed the Vermont Senate but died in the House, largely because state lawmakers wanted to wait and see what would happen in this Supreme Court case.
Lt. Gov. Molly Gray, on the Senate floor: The Senator from Bennington is recognized.
Sen. Brian Campion, D-Bennington, chair of the Senate Education Committee: Thank you, Madam President. I want to make it clear that the committee, again — after lots of conversations with attorneys, there is no path forward to preserve academies, preserve this school, to preserve that school, it’s just not feasible. It’s just not the way that the laws are written. If dollars go to one school, they go to all. And the committee felt that it was — we did not want to disrupt the educational landscape of our students.
Riley Robinson: Do you think, so if Vermont went the route of just being like, hey, we’re not going to send public money to any private schools, or we’re going to really narrow this program — what do you think the response would be?
Peter D’Auria: I think that would be really controversial. A lot of these private schools have really long histories in Vermont and have really strong roots to their communities. And sort of because of this, like weird tuitioning system, they’ve kind of in some places taken on the role of public schools.
I mean, there’s Burr and Burton Academy — a very, very prominent, independent school in Vermont. They educate hundreds of kids that are tuitioned out of public school districts. So they’re pretty, I would say, pretty tightly woven into the sort of educational fabric in Vermont.
Riley Robinson: Vermont has had the tuition system since 1869. And there’s been a whole list of state-level lawsuits dealing with this question of public money to religious schools. Before 1961, tuition could be used for religious schools. Then there was a lawsuit. And then there was another lawsuit in 1994, and again in 1996.
So I wanted to ask Professor Teachout why, after all these years, this area of the law was still so unsettled, not just here in Vermont, but also at the national level.
Riley Robinson: I have one more thing I want to make sure I ask you. I know there was reversal after reversal. There was the 1999 case, there was this recent spate of cases. Why is this so back and forth?
Peter Teachout: Well, it’s not back and forth, it is pretty much a one-way street. And the answer is pretty simple. The appointment of new justices to the Supreme Court, conservative justices, that now represent a clear majority on the court, and they are very much in favor of bringing religion back into public life in this country.
I will tell you that there are some thoughtful people who support that view. They think of bringing religion into public life, sort of like, as the conscience of the body politic, something that’s been missing because of radical secularization of everything that we witnessed earlier.
But six of the justices right now are very much interested in breaking down the earlier constitutional barriers between church and state. They would like to see religion brought more into the mainstream of the American political experience.