Supreme Court Ruling’s Impact

By Jim Sabatoso
THE RUTLAND HERALD
A Supreme Court decision this week could reopen the door for religious schools to participate in Vermont’s tuition reimbursement program.

On Tuesday, the court ruled 6-3 that Maine violated the Constitution by prohibiting students from using public tuition funding to attend religious schools.

Writing for the conservative majority, Chief Justice John Roberts wrote that Maine’s school choice program violated the Constitution’s protections for religious freedoms.

“Maine’s ‘nonsectarian’ requirement for its otherwise generally available tuition assistance payments violates the Free Exercise Clause of the First Amendment. Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise,” he wrote.

Justice Sonia Sotomayor wrote a dissent for the court’s three liberal justices, stating, “This Court continues to dismantle the wall of separation between church and state that the Framers fought to build.”

In a separate dissent, Justice Stephen Breyer noted Maine “wishes to provide children within the State with a secular, public education. This wish embodies, in significant part, the constitutional need to avoid spending public money to support what is essentially the teaching and practice of religion.”

Breyer also raised concerns about potential discrimination of some students, noting that both schools at the center of the case “have admissions policies that allow them to deny enrollment to students based on gender, gender identity, sexual orientation and religion, and both schools require their teachers to be born-again Christians.”

School choice advocates, however, celebrated the court’s decision.

“Today’s decision makes clear, once and for all, that the government may not bar parents from selecting religious schools within educational choice programs, whether because of their religious affiliation or the religious instruction they provide,” Michael Bindas, an attorney at the libertarian law firm the Institute for Justice, said in a press release Tuesday.

Bindas argued the case in front of the court for the firm, which has also represented several Vermont families who sued the state Agency of Education for tuition reimbursement in recent years.

“Parents have a constitutional right to choose such schools for their children, and the Court today held that a state cannot deny them that choice in programs that allow for other private options,” he said.

Tuesday’s ruling is likely to embolden school choice advocates in more than a dozen states, including Vermont, where taxpayer money is prohibited from flowing to religious schools.

In Vermont, a student living in any one of the approximately 80 towns without its own high school is able to apply for a tuition voucher to attend one elsewhere. For a student tuitioned at a public school, a town pays the receiving district the equivalent of that district’s average per pupil costs. For independent schools, a student receives a voucher worth up to the average announced tuition for Vermont public schools or the independent school’s tuition, whichever is less.

For more than 20 years, religious schools have been excluded from the state’s tuition reimbursement program; however, the 2020 Supreme Court decision in Espinoza v. the Montana Department of Revenue, which ruled that religious schools cannot be excluded from participating in publicly funded programs that provide financial assistance to students attending private schools, provided a new avenue for Vermont families to challenge state policy.

Indeed, several lawsuits filed in the wake of Espinoza from families seeking tuition reimbursement to attend religious school have been slowly forcing the state’s hand.

A ruling by the State Board of Education last year ordered three school districts to pay tuition requests made by families living in choice towns who were seeking to attend Catholic schools. At the time of the ruling, the board argued that excluding the schools would essentially be discriminatory, but it also stressed that its ruling was not setting precedent.

While that ruling has ostensibly put religious schools back on the table, AOE guidance on the matter historically has been muddy. Last year, for example, the agency released a best practices document for schools but has since withdrawn those recommendations.

AOE officials declined to comment on the Supreme Court’s latest ruling Tuesday.

Vermont lawmakers, however, have attempted to be proactive. In anticipation of the Maine case, they introduced a bill last session that aimed to place tighter restrictions on the flow of public dollars to religious schools.

The bill, S.219, which passed the Senate but stalled in the House, proposed to require religious schools to certify they have “adequate safeguards” to ensure public tuition money will not be used “to support religious instruction or worship or the propagation of religious views,” and compelled schools to comply with federal and state nondiscrimination laws protecting, for example, LGBTQ+ students or those needing special education services.

Peter Teachout, a law professor at Vermont Law School, said the court’s ruling Tuesday has effectively rendered the state’s current tuition reimbursement program unconstitutional.

He said, however, that the Vermont Constitution may be an obstacle on the road to including religious schools in the program.

Vermont, unlike Maine, has a state constitutional provision called the compelled support clause which prohibits the state from using public tax dollars to support religious worship or instruction.

Teachout characterized the clause as a key pillar that “forms one of the basic liberties protected by the Vermont constitution.”

“So what the compelled support clause does — and it’s really important — is it protects your right not to have to support, with your money, the propagation of religious views with which you fundamentally disagree,” he said.

Teachout said the challenge for Vermont will be reconciling the conflict between the Maine decision, which ruled the state violated the free exercise rights of students by prohibiting them from attending religious schools, with Vermont’s compelled support clause, which prohibits the use of public money for religious education or instruction.

One solution, he said, is for the state to simply stop providing tuition reimbursement to all independent schools.

“It’s a pretty drastic and radical consequence, but it is a constitutionally permissible one,” he said.

However, David Hodges, an attorney with the Institute for Justice who is familiar with the Vermont cases, claimed the compelled support clause argument doesn’t hold up.

“For nearly two years, Vermont has argued that the Compelled Support Clause in its constitution permits it to single out students attending religious schools as the one group of people who cannot participate in the state’s tuitioning program,” he wrote in an email Wednesday. “Yesterday, the Supreme Court firmly rejected that argument and held once again that discrimination based on religion is discrimination all the same.”

Teachout, meanwhile, suggested a less severe course of action might be found in legislation similar to S.219, which could require independent schools seeking public money to enter into a contract with the state.

“Under that model, you no longer have parent choice being the primary driver, you basically have the state deciding which private schools it wants to enter into contracts with to provide education to the students in Vermont,” he said.

Such a contract would require schools to affirm they are adhering to specific criteria, such as complying with state and federal anti-discrimination laws or protecting student free speech and expression, or lose their access to public funds.

Though Teachout noted the state would likely have difficulty including criteria around a school’s hiring practices.

He explained that religious schools are entitled to a “ministerial exception,” meaning states cannot require approved religious schools to comply with state anti-discrimination laws with respect to hiring. Creating criteria dictating hiring practices, it could be argued, interferes with the free exercise of the religious views of the institution.

“They’ve got a constitutional right to hire whoever they want. If you put restrictions on funding, that’s going to interfere with their ability to make those choices,” he said.

While it’s unclear how quickly religious schools may be admitted to the state tuition reimbursement program, if at all, Teachout noted it could be sooner rather than later.

“If Vermont doesn’t move quickly to replace the current system with something like S.219, I think the courts are probably going to, without much hesitation, find the current Vermont approach to be inconsistent with the (Supreme) Court’s ruling in the Maine case,” he said.

Monsignor John McDermott, vicar general for the Roman Catholic Diocese of Burlington said in an email Wednesday the diocese was evaluating the possible impact of the ruling but declined to comment further.

jim.sabataso @rutlandherald.com