New ruling says public dollars can go to religious schools

By Lola Duffort/VTDigger

A new federal appeals court ruling has once again chipped away at Vermont’s long-standing prohibition against sending public tuition dollars to religious schools.

The Alliance Defending Freedom, the powerful Christian legal group litigating the case on behalf of four Vermont high school students and the Roman Catholic Diocese of Burlington, has declared victory, saying that the ruling “ends more than 21 years of discrimination.”

“I think what we saw today was a pretty definite answer by the court that the current regime that is going on in Vermont, in all public programs — but in particular the tuitioning program — is unconstitutional,” Paul Schmitt, legal counsel for the Alliance, said in an interview.

But Peter Teachout, a constitutional law professor at Vermont Law School, argued this latest order is “quite narrow” and still leaves open the possibility that the state can prohibit tax dollars from paying directly for religious instruction.

In a certain respect, Wednesday’s ruling by a three-judge Second Circuit Court appeals panel is no surprise. The immediate result — that the school districts being sued must pay tuition reimbursements to the plaintiffs so their children may attend Rice Memorial High School, a Catholic school in South Burlington — was decided in early February, that’s when the plaintiffs were granted an emergency order by the Second Circuit Court enjoining the districts to pay up before Rice’s next semester started.

But that emergency order came without a legal opinion explaining the Court’s thinking — until now. 

The suit was one of several filed in Vermont by well-funded conservative legal groups in the wake of Espinoza v. Montana Department of Revenue, a U.S. Supreme Court case from last summer that was widely expected to have implications for school choice programs nationwide.

That Supreme Court ruling nullified amendments in state constitutions that prohibit taxpayer-funded benefits flowing to religious entities solely because they are religious. But while states could not deny entities funds based on their status as religious institutions, it left open the possibility that they might still regulate how those funds are used. 

That distinction is why it’s yet to be seen whether Vermont’s own church-and-state constitutional protection — its “compelled support clause” — can withstand Espinoza. 

In a landmark Vermont Supreme Court decision in 1999, Chittenden Town School District v. Department of Education, the justices found that school districts could not pay tuition to religious schools in the absence of “adequate safeguards” against those funds paying for religious indoctrination and worship.

But in the intervening years, neither the Legislature nor the Agency of Education have elaborated on what “adequate safeguards” might look like. Rulings from federal courts and the state board of education have so far sidestepped the question of whether Vermont can restrict taxpayer dollars from paying for religious instruction, even if it cannot deny entities public funds because the institutions themselves are religious. 

In part, the Second Circuit’s ruling this week also leaves the status-versus-use debate unresolved, with the three judges arguing that the districts were applying a de-facto ban on religious schools.

“The AOE have, for decades, applied Chittenden Town through status-based exclusion of all religious or pervasively sectarian schools from the [town tuitioning program]. And the school districts maintained this discriminatory practice even after the Supreme Court’s ruling in Espinoza,” the opinion stated.

But a concurring — though nonbinding — second opinion included in Wednesday’s ruling by Second Circuit Court Judge Steven Menashi wades into the status-versus-use debate. And it argues forcefully that in any use-based restriction that would exclude sectarian schools would likely be unconstitutional.

Teachout called Menashi’s concurring opinion “both more troubling and predictable.” He pointed out that it was not signed by the other judges. 

Menashi went “out of his way to decide the case on grounds much broader than necessary,” Teachout argued, in effect adopting “the ‘Free Exercise scorched earth’ policy that the plaintiffs’ legal organization has been actively pursuing.”

A more conclusive answer could be coming from the Vermont Supreme Court.