On December 28, 2023

In Vermont schools, conservative legal groups have become a potent force

 

Outside organizations are increasingly challenging the state regulations on religious schools,
defending transphobia, and weighing in on local policies and events

By Peter D’Auria/VTDigger

Last February, the girls’ basketball team at Mid Vermont Christian School, a pre-K-12 private school in Quechee, made the state’s Division 4 playoffs. 

But instead of playing its first game, Mid Vermont Christian chose to forfeit — because the opposing team had a transgender player. Going ahead with the matchup, Mid Vermont’s head of school Vicky Fogg told the Valley News, would “(jeopardize) the fairness of the game and the safety of our players.” 

That decision swiftly made international news and sparked an equally swift backlash. In March, the Vermont Principals Association, which governs school sports, banned Mid Vermont Christian from all VPA activities, including athletics, spelling bees and science fairs. 

Last month, Mid Vermont Christian filed a federal lawsuit seeking to overturn that decision. To achieve that goal, the school has secured powerful and deep-pocketed representation: Alliance Defending Freedom, one of the country’s preeminent conservative Christian legal groups.

The involvement of Alliance Defending Freedom is the latest example of what observers say is a trend. Over roughly the past half-decade, a bevy of well-funded, out-of-state conservative advocacy groups — many with similar-sounding names — have become active in different aspects of Vermont education.

Outside organizations have challenged state regulations over keeping public money out of religious schools, defended school employees disciplined for alleged transphobia and waded into debates over state and local educational policy. 

“I think they are better funded than they ever were,” Pietro Lynn, a Burlington attorney who represents most public school districts in the state, said of conservative groups. “I think they have more lawyers than they ever had. I think they have larger networks of referral attorneys in the various states. All of those things coalesce into more litigation by them in the states like Vermont.”

To be sure, it’s not uncommon for out-of-state groups of various political stripes to weigh in or take legal action on Vermont issues.

“It is how the system is meant to work,” said Jared Carter, a law professor at Vermont Law and Graduate School. “If a law is passed, and there’s a claim to be made, win or lose, then you have the right to go into a court, and have a federal court or state court tell you what the Constitution means.”

Carter added that state policies often attract legal challenges from organizations with opposing political views, noting that the ACLU has filed suits in multiple Republican-run states to stop restrictions on LGBTQ+ content in schools.

Of all the groups that have gotten involved in Vermont, Alliance Defending Freedom is likely the most prominent and well-resourced. The organization boasted roughly $90 million in assets earlier this year, according to financial records, and has offices in multiple states and countries. The group litigates some of the most high-profile cases in the U.S. — including, last year, successfully arguing to overturn Roe v. Wade at the U.S. Supreme Court.

“We are focused on protecting religious freedom and free speech rights of all Americans,” said Ryan Tucker, senior counsel at Alliance Defending Freedom, in an interview. “And so if there are First Amendment implications for an individual or for an institution, then that’s something that we’re going to be interested to take a look at.”

Those on the other side of the political spectrum in Vermont, however, see it differently.

“It’s no secret that we face sustained, bad faith efforts to end reproductive autonomy, roll back anti-discrimination protections, and undermine our democracy and our public institutions,” Vermont ACLU executive director James Lyall said in an emailed statement. “This is both a continuation and an escalation of longstanding attempts to take away our hard-earned rights and liberties, and to turn back the clock on the progress we have made as a society.”

‘Discriminatory tuitioning regime’ 

In 2020, a South Hero family, the Hesters, joined the Vermont Roman Catholic Diocese in a lawsuit against the state of Vermont. 

Vermont’s public tuitioning system allows students in rural areas without a local public school to use state money to attend private schools elsewhere. But the Hesters’ children were barred from using those funds, according to the lawsuit, because they attended Rice Memorial High School in South Burlington, a Catholic school.

Vermont officials, at the time, sought to prevent taxpayer money from paying tuition at religious schools. It’s one example of the state’s attempts to put guardrails around tax money in parochial schools — attempts that have drawn a flurry of legal challenges from conservative legal groups, including the Hesters’ case, which was filed by Alliance Defending Freedom. ADF alone has filed at least four lawsuits around public money in religious schools. 

“You’ve got schools that are being impacted by a discriminatory tuitioning regime that the state had for two decades,” Tucker, the attorney at Alliance Defending Freedom, said. “That also impacts not just the schools, but the kids who want to attend those schools, the parents who want to raise their children a certain way.”

The surge of litigation has coincided with a series of U.S. Supreme Court rulings in education cases favorable to religious plaintiffs. In a 2020 decision in the case Espinoza v. Montana Department of Revenue, the Supreme Court ruled that the state of Montana could not exclude religious schools from a publicly funded scholarship program. 

That case was litigated by the Institute for Justice, a Virginia-based libertarian public interest law firm. The Institute for Justice was founded in 1991 with “seed funding” from the Charles Koch Foundation, according to its website. In court, the group has advocated for school choice and fought government regulation, eminent domain and civil forfeiture, among other issues. (The Institute has also worked with the American Civil Liberties Union on cases over civil forfeiture and legal immunity for government employees.)

After the Espinoza decision, the Institute for Justice turned to Vermont. In September 2020 — the same month of the Hesters’ case — the Institute filed a separate, similar lawsuit arguing that students attending religious schools could not be excluded from receiving Vermont public tuition dollars.

“We were looking at different states where there were constitutional violations, and states where the law or regulations were inconsistent with Espinoza and with the Constitution,” David Hodges, an attorney at the Institute for Justice, said in an interview. “Vermont was one of them.”

Hodges said he could not recall how the group connected with the plaintiffs in the case. 

“Generally, when we’re trying to find clients in this area, we would reach out to like-minded organizations, as well as parent groups or educators who are sympathetic to our goals,” he said. 

After another 2022 Supreme Court decision involving public money and religious schools — in which the Institute for Justice represented plaintiffs — Vermont’s Agency of Education settled multiple cases over the question.

As part of that settlement, then-Secretary of Education Dan French told school districts that they could not deny requests for public tuition dollars simply because a student wanted to attend a religious school.

A spokesperson for the Vermont Agency of Education declined a request for an interview about the influence of out-of-state legal groups.

In 2020, another lawsuit sought to make even more dramatic reforms to Vermont’s tuitioning program. That case — a collaboration between Walden attorney Deborah Bucknam and the Chicago-based Liberty Justice Center — attempted to create a statewide school choice program, which would give all students across Vermont access to state money for public or private schools of their choosing. 

School choice has become a priority of Republicans nationwide, but has drawn fierce opposition from public school advocates.

“Quite frankly, in my opinion, the people on the right are now doing the constitutional civil rights cases far more than the people on the left are doing,” Bucknam said in an interview in August. “And it used to be the other way around.”

The Liberty Justice Center has filed cases across the country challenging vaccine mandates, supporting rules requiring parental notification if a child uses different pronouns at school, and seeking to block the expansion of vote-by-mail, among others.

“We don’t characterize ourselves as conservative, particularly, but we simply seek to enforce constitutional rights and enforce constitutional limits on government power across the board,” Jacob Huebert, the Liberty Justice Center’s president, said in an interview.

The Vermont Supreme Court ultimately ruled against the plaintiffs. But Bucknam and Huebert said the court’s decision left an opening for future lawsuits.

“We do believe that the Vermont Supreme Court left open the opportunity to pursue that issue further in the state,” Huebert said. “And so we are still looking at that and still interested in that.” 

‘An interested third-party organization’

On December 19, 2022, the Shelburne Community School sent a notice in its regular weekly newsletter to community members. Tucked amid items about a computer science program, free and reduced lunch and the spelling bee was a short announcement: the school was planning to create “an opt-in racial affinity group for students in grades 3-8 identifying as Black, Indigenous, or people of color,” the newsletter read.

About two weeks later, according to co-principal Brett Cluff, the school received a voicemail from Parents Defending Education, a conservative advocacy group focused on schools. 

The organization, which lists a Virginia address and describes itself as “working to reclaim our schools from activists imposing harmful agendas” on its website, had filed a civil rights complaint with the federal Department of Education. The filing alleged that, by creating an affinity group that was open only to students of certain races, the school was engaged in racial discrimination.

“PDE makes this complaint as an interested third-party organization that opposes racial discrimination and political indoctrination in America’s schools,” the group wrote. Parents Defending Education did not respond to emails seeking comment.

Shelburne Community School told federal investigators this spring that they had sent out a revised newsletter making it clear that the affinity group — which did not yet exist — would be open to all students, according to federal documents. The investigation was closed less than a month later.

School officials said that the original goal was not to exclude students of any race: “It was open to really anybody who wanted to be part of it,” Lashawn Sells, the school’s diversity, equity and inclusion coach, said in an interview. 

Still, as of this fall, the affinity group had not yet begun to meet. Since the investigation, Cluff, the principal said, the school has been more cautious about how it informs parents about events and initiatives.

“It’s made me think about the importance of the language that we use when we are communicating things more broadly to our school community,” he said.

In 2020, after a student asked to fly the Black Lives Matter flag at school, the Mill River Unified Union School District in Rutland County set to work crafting a districtwide flagpole policy.

Those discussions set off months of heated debate at school board meetings, during which the district also received feedback from a nonlocal entity: the conservative organization Liberty Counsel, which has offices in Florida, Virginia and Washington, D.C. Liberty Counsel’s website describes itself as a “Christian ministry” that is “advancing religious freedom, the sanctity of human life and the family through strategic litigation.” 

In a November 18 letter to the Mill River board, Liberty Counsel attorney Richard Mast raised the possibility of litigation over the district’s flag policy. 

“If the District desires to promote ‘diversity,’” Mast wrote, “there is but one flag that symbolizes the diversity of the American people, and ‘equality’ of all people under the law. This flag unites, rather than divides; and it consists of a blue field, fifty white stars, and thirteen red and white stripes.”

Later that year, the board approved a policy that allows board members to approve or deny requests for certain flags. Officials flew the Black Lives Matter flag the next year, and Adrienne Raymond, then a member of the school board, said Mast’s letter was “vaguely threatening” but had little impact.

But in February of this year, the same legal firm appeared to have more success. 

A local group had booked a speaking event at Vergennes Union High School featuring Walt Heyer, an activist who spent eight years as a trans woman before detransitioning and now advocates against gender-affirming care. As news of the upcoming talk sparked backlash, Mast, of Liberty Counsel, wrote to the district warning of potential litigation if they made the “ill-advised” decision to cancel the event.

After the talk took place as planned, the organization claimed “victory for parental rights.” Holly Meade, a spokesperson for Liberty Counsel, told VTDigger in June that “Liberty Counsel was contacted by individuals involved in the event and sent the demand letters setting forth the law.” 

In an email earlier this month, Meade declined to say whether the organization was working with other Vermont school districts.

‘Panic, anxiety, fear’

Last year, an interaction in the Randolph Union High School girls’ locker room sparked national news coverage. 

Exactly what happened is in dispute, but the incident centered on the use of the locker room by a transgender girl. That drew complaints from another student and her father, who publicly objected to the trans student — who they referred to as a male — using the girls’ lockers. 

The incident sparked a storm of harassment and vitriol directed at the trans student, and district officials took down their website after hackers flooded it with “hate speech, symbols, and photographs targeting transgender individuals,” Orange Southwest Supervisory District superintendent Layne Millington said last year.

In the aftermath, school officials sought to punish the complaining student, ordering a two-day suspension and instructing her to join a “restorative circle” and write a “reflective essay.” The district also suspended her father, Travis Allen, from his job as the coach of the school’s girls’ soccer team without pay.

In October 2022, Alliance Defending Freedom filed a lawsuit against the district on behalf of Allen and his daughter. ADF argued that, by punishing them for stating their views, the district was infringing on their rights to free speech. 

“The First Amendment does not countenance this kind of government censorship, where a public school mandates that students and coaches refrain from expressing any view that offends its prescribed views,” the lawsuit reads.

But Mo Sivvy, the mother of the trans student at the center of the dispute, said that the ordeal was deeply traumatizing for her daughter. 

“My daughter was not going to school,” Sivvy said. “She was having really bad episodes of panic, anxiety, fear, sleeplessness, not being able to concentrate in school.”

It got so bad that Sivvy’s daughter spent several weeks at the Brattleboro Retreat, a residential mental health facility, Sivvy said. One of the worst parts of the experience, she said, was that the Alliance Defending Freedom had issued subpoenas to her and her daughter. 

“You know, when a child gets, like, a 90-page subpoena in the mail, (that’s) terrifying,” Sivvy said. 

In April, the Allens settled with the district, and Sivvy and her daughter ultimately did not have to testify.

As part of that settlement, the district agreed to reinstate Travis as the girl’s soccer coach and expunge the records of all disciplinary actions related to the case. The district paid $125,000 to the plaintiffs, $40,000 of which went to Allen and his daughter. 

The agreement also stipulated that Randolph Union High School would take down a series of YouTube videos, including videos titled “Letters of Love” and “LGBTQ Love Letters,” and to remove a bulletin board with “messages of ‘love and support.’”

Millington, the superintendent, said that he had not heard of the Alliance Defending Freedom prior to the lawsuit. The settlement has not changed the district’s policies or procedures, he said, but he noted that “it generally costs much less to settle than to defend a case.”

In July, the Alliance Defending Freedom sued the Windsor Central Supervisory Union on behalf of David Bloch, a “practicing Roman Catholic” snowboarding coach who alleged that he was fired after expressing that “males and females have different DNA” and that “biological differences generally give males competitive advantages in athletic events,” according to the lawsuit. That case is ongoing as of Dec. 18. 

“I have been instructed by the District’s lawyers not to discuss the facts of the case,” Sherry Sousa, Windsor Central Supervisory Union’s superintendent, told VTDigger in an August email. “We are confident that the District acted properly.” 

‘Not getting the message’

Amanda Hollis-Brusky, a politics professor at Pomona College who has studied the conservative legal movement, said that, for public interest law firms, a successful case is also a means of fundraising.

“Alliance Defending Freedom’s budget has exploded since the mid-1990s,” Hollis-Brusky said. “Because of their success. And success brings in more money, which allows you to plant more cases, which allows you to be more successful.”

A spokesperson for Alliance Defending Freedom did not respond to an emailed question about fundraising. According to Alliance Defending Freedom’s website, the organization has notched 15 victories at the Supreme Court and has an 80% overall win rate. 

Part of that success, Hollis-Brusky said, likely comes from the legal environment at federal courts, which grew more conservative under former president Donald Trump. 

“Right now these groups have a very favorable audience in the judiciary, at the Supreme Court and in the federal courts,” Hollis-Brusky said. “Because Trump managed to put a lot of judges who are very favorable to their claims on the bench in his four years.”

In the Quechee case, it remains to be seen how the courts will view Alliance Defending Freedom’s arguments. Plaintiffs in that case are taking aim at not only the state’s athletics program, but also state anti-discrimination rules for private schools. 

Under those rules, private schools seeking public tuition money must sign a statement affirming that they will follow the state’s Public Accommodations Act, which forbids discrimination on the basis of “race, creed, color, national origin, marital status, sex, sexual orientation, or gender identity.”

Now, Alliance Defending Freedom is arguing that Mid Vermont Christian should be able to access public tuition money without having to follow those rules. 

Asked why the organization was involved in so many education cases in Vermont, Tucker, the Alliance Defending Freedom attorney, pointed to recent Supreme Court victories that have chipped away at earlier guardrails between religion and schools. 

“It’s almost like Vermont’s not getting the message,” he said.

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