Vermont education officials reached a settlement over religious schools. A federal judge in Burlington had concerns.

In a Sept. 22 phone conference, U.S. District Court Judge Christina Reiss told attorneys that the proposed settlement would require her to sign off on a legal opinion that she had not written, and that aspects of the agreement were “concerning” and would make her “uncomfortable.” File photo by Glenn Russell/VTDigger

Earlier this month, the Vermont Agency of Education reached a $95,000 settlement agreement to put an end to a two-year-old lawsuit over religious schools. 

Since 2020, the agency has been embroiled in litigation with a group of parents and the Catholic Diocese of Burlington, who have argued that Vermont children should be allowed to use public tuition dollars at religious schools. 

After a pivotal U.S. Supreme Court decision in June, the two sides agreed to settle. Under the terms of that settlement, the Agency of Education would pay $95,000 for plaintiffs’ attorneys’ fees and agreed to issue a letter informing school districts that local officials could not use Vermont’s constitution to “deny families’ use of tuition benefits at religious schools.”

The agency sent that letter to superintendents earlier this month. 

But last week, a federal judge in Burlington expressed concern with some of the settlement’s terms. 

In a Sept. 22 phone conference, U.S. District Court Judge Christina Reiss told attorneys that the proposed settlement would require her to sign off on a legal opinion that she had not written, and that aspects of the agreement were “concerning” and would make her “uncomfortable.” 

In some provisions of the settlement, Reiss said, the parties “have the Court reaching certain conclusions of law that I haven’t reached” —  conclusions, she said, that “I would not reach without doing my own analysis.”

Reiss’ comments may not change the practical outcome of the case: Vermont public money is currently paying for tuition at religious schools, and has been doing so since an appellate court order last year. And other provisions of the settlement could stay unchanged.

But they provide an unusual footnote to a dispute over one of the most controversial questions in Vermont education. 

In Vermont, thousands of kids live in small, rural towns that do not operate their own public school. Instead, local districts pay tuition for children to attend public or private schools in other parts of the state or country — or, in some cases, abroad.  

But for years, students were restricted from using those public dollars to attend religious schools. That’s because a provision in Vermont’s state constitution, called the “Compelled Support Clause,” prohibits residents from being forced to support a religion that they do not believe in.  

In 1999, Vermont’s Supreme Court ruled that public tuition money could not go to religious schools “in the absence of adequate safeguards against the use of such funds for religious worship.”

Instead of defining “adequate safeguards,” however, state officials simply barred tuition payments from being used at religious schools at all. 

In September 2020, a group of Vermont parents represented by the Alliance Defending Freedom, a prominent Christian advocacy organization, sued the state over those restrictions, alleging that they amounted to discrimination.

In June, the Supreme Court ruled in a case called “Carson v. Makin” that a Maine tuition program — one that, like Vermont’s, provided public money for students to attend private schools — could not bar those funds from being used at religious schools. 

That decision was widely interpreted to have a broad impact on Vermont’s educational landscape. 

Following that decision, state officials agreed to the settlement deal with the parents. As part of that deal, state education officials agreed to sign off on a series of provisions, including one stating that the recent Supreme Court decision “renders Vermont’s adequate safeguards requirement unconstitutional.”

State education officials would be “permanently enjoined from enforcing the adequate safeguards requirement to deny payment of tuition to independent schools based on their religious status, affiliation, beliefs, exercise, or activities,” the agreement read. 

The agency would also be barred from “advising, directing, or providing guidance to school districts, approved independent schools, or the public that the adequate safeguards requirement may be enforced to exclude independent schools from tuition benefits.”

But Reiss, the federal judge overseeing the case, balked at those conditions. 

Reiss expected a “judgment with various recitals, the parties agree to this and that,” which she would agree to enforce, she told attorneys during last week’s phone conference. 

But instead, she said, she was being asked to sign off on what were effectively legal opinions that she had not come to. 

“So I wouldn't, like, strike down a provision of the Vermont Constitution or hold something unconstitutional unless I actually decided myself that I agreed with that,” Reiss said, according to a court transcript of the conversation. “And I don’t believe I've ever been asked to kind of adopt somebody’s conclusions of law in that way.”

The prospect of limiting officials’ guidance to school districts made her “uncomfortable,” Reiss said, noting that she had not “done a First Amendment analysis on freedom of speech of whether I should be ordering a state official what to say and not to say.”

Paul Schmitt, an attorney with the Alliance Defending Freedom representing the parents, told Reiss that the settlement’s intent was to “resolve this legal question.”

“And really the only way to do that would be for the Court to do it, knowing that this has come up repeatedly over the last two decades,” he said. “And so we were looking for finality.” 

But Reiss said that solution seemed “kind of unique.”

“You can agree to anything you want,” Reiss said. “You can ask me to enforce it. But it shouldn't be me reaching any kind of conclusions that I haven't reached myself.”

Attorneys for the two sides ultimately agreed to try to resolve the language of the settlement. 

A spokesperson for the Alliance Defending Freedom said the organization could not comment until the settlement was finalized. 

Ted Fisher, a spokesperson for the Vermont Agency of Education, said that the agreement would allow “tuition paying school districts to move forward with clarity, understanding that they must pay tuition to all approved independent schools regardless of religious affiliation.”

The payment of the $95,000 is contingent on the court’s approval of that settlement, Fisher said.

But Peter Teachout, a constitutional law professor at Vermont Law and Graduate School who has criticized the Agency of Education’s guidance around religious schools, called the terms of the settlement “deeply problematic” and said it made “radical concessions.”

School district officials, he believes, can fulfill both the Vermont Constitution’s compelled support clause and the Supreme Court’s recent ruling without conflict — such as by limiting tuition money to public schools only, or by choosing select private schools to designate as recipients of that money. 

"Judge Reiss is right to have reservations about approving a settlement which purports to declare that a key provision in the Vermont state constitution is ‘unconstitutional,’” Teachout said, “especially since, contrary to the stipulations in the proposed settlement agreement, that conclusion is not required by the Supreme Court's decision in the Carson case.”

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