Vermont’s top education official says school districts cannot deny tuition to religious schools

Dan French, secretary of the Vermont Agency of Education, speaks during a Covid-19 press conference in September 2021. File photo by Mike Dougherty/VTDigger

Vermont’s top education official has told school districts they cannot withhold public tuition money to schools because of their religious affiliation, issuing what appears to be the state’s first public guidance on the subject since a landmark U.S. Supreme Court decision this summer.

“Requests for tuition payments for resident students to approved independent religious schools or religious independent schools that meet educational quality standards must be treated the same as requests for tuition payments to secular approved independent schools or secular independent schools that meet educational quality standards,” Dan French, Vermont’s secretary of education, told superintendents in a Tuesday letter. 

The new guidance comes three months after a U.S. Supreme Court decision in a Maine case, Carson v. Makin, which is expected to have a significant impact on Vermont’s educational landscape.

Maine, like Vermont, is too rural and sparsely populated to operate public schools in all towns. To ensure every child has access to education, both states allow students in some areas to use public money to attend nearby private schools.

Both states previously placed restrictions on that public money going to religious schools. In 2018, a group of Maine parents sued over those restrictions, alleging that they were victims of discrimination because their children could not use public dollars to attend Christian schools. 

In a 6-3 decision June 21, the Supreme Court sided with the parents, ruling that the Maine program amounted to unconstitutional discrimination. 

That decision is expected to have broad implications for Vermont’s system, where some parents have also sought public dollars to send their children to religious schools. 

But Vermont’s constitution presents a unique wrinkle. A provision known as the “compelled support clause” prohibits Vermonters from being forced to support a religion that they do not practice, or one that is “contrary to the dictates of conscience.”

The Supreme Court’s decision has raised questions about whether the use of school district funds — taxpayer money — for tuition at religious schools could violate that clause.

In Tuesday’s letter, French explicitly said that public school districts could not withhold tuition funding to religious schools based on the compelled support clause.

But Peter Teachout, a constitutional law professor at Vermont Law School, questioned that guidance. 

“I don’t know who is responsible for providing the (Agency of Education) with legal and constitutional advice, but I think that advising local school districts to violate a key provision in the Vermont constitution without at least exploring whether that is required by the Supreme Court decision in the Carson case, and without exploring options available for complying with both that decision and with the Vermont constitution, is deeply problematical,” Teachout said in an email to VTDigger. 

Noting that Maine’s constitution had no compelled support clause, Teachout floated the possibility of a temporary hold on all public tuition payments to private schools until state lawmakers devise a solution. Vermont lawmakers tried and failed to address the issue in the legislative session earlier this year, and expect to return to it in the coming session. 

“The better, the more responsible, advice under the circumstances would have been to instruct local school districts to restrict tuition reimbursement payments to public schools in other districts until the state legislature has had time to act,” Teachout said. 

Tuesday’s letter does not seem to represent a significant shift in the status quo: Vermont school districts have already been paying tuition for students to attend private religious schools.

During the 2020-21 school year, 14 Vermont students received roughly $150,000 in public money for tuition at religious schools, according to data provided by the Vermont Independent Schools Association. 

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