impact of the Supreme Court decision |

A Supreme Court ruling 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 barring 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 Constitutional protections for religious freedoms.

“Maine’s ‘non-sectarian’ 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 works to identify and exclude otherwise eligible schools based on their religious practice,” he wrote.

Judge Sonia Sotomayor wrote a dissent for the court’s three liberal justices, saying, “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 that Maine “wishes to provide the children of the state with a secular public education. This wish embodies, in large 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 against some students, noting that the two 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 ruling makes it clear, once and for all, that the government cannot prohibit parents from selecting religious schools through educational choice programs, whether because of their religious affiliation or the religious instruction they provide,” said Libertarian law attorney Michael Bindas. firm the Institute for Justice, said Tuesday in a press release.

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

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

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

In Vermont, a student living in one of approximately 80 cities without their own high school can apply for a tuition voucher to attend one elsewhere. For a student in a public school, a city pays the host district the equivalent of the average cost per student in that district. For independent schools, a student receives a voucher worth up to the average of Vermont public school advertised tuition or independent school tuition, whichever is less.

For more than 20 years, religious schools have been excluded from the state 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 participation in state-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 aftermath of Espinoza by families seeking tuition reimbursement to attend a religious school slowly forced the hand of the state.

A State Board of Education ruling last year ordered three school districts to pay tuition fees requested by families living in select cities who sought to attend Catholic schools. At the time of the decision, the council argued that excluding the schools would be essentially discriminatory, but it also stressed that its decision did not create a precedent.

While the move ostensibly put religious schools back on the table, AOE’s advice on the matter has always been confused. 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 on Tuesday.

Vermont lawmakers, however, have tried to be proactive. In anticipation of the Maine affair, they introduced a bill in the last session that sought to impose tighter restrictions on the flow of public funds to religious schools.

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

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

He said, however, that the Vermont Constitution could stand in the way of including religious schools in the program.

Vermont, unlike Maine, has a state constitutional provision called the Forced Support Clause that prohibits the state from using taxpayer dollars to support worship or religious instruction.

Teachout called the clause a key pillar that “constitutes one of the fundamental freedoms protected by the Vermont constitution.”

“So what the forced support clause does – and this is really important – is that it protects your right not to have to support, with your money, the propagation of religious views that you are fundamentally with. disagree,” he said.

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

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

“It’s a pretty drastic and sweeping consequence, but it’s a constitutionally acceptable consequence,” he said.

However, David Hodges, an attorney with the Institute for Justice who is familiar with Vermont cases, argued that the mandatory support clause argument does not hold water.

“For nearly two years, Vermont argued that the mandatory support clause in its constitution allowed it to designate students attending religious schools as the only group of people who cannot participate in the state’s tuition program. “, he wrote in an email on Wednesday. “Yesterday, the Supreme Court firmly rejected this argument and once again affirmed that discrimination on the basis of religion is still discrimination.”

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

“In this model, you no longer have parental choice as the primary driver, you basically have the state deciding which private schools it wants to contract with to provide education for students in Vermont,” he said. declared.

Such a contract would require schools to affirm that they adhere to specific criteria, such as upholding state and federal anti-discrimination laws or protecting students’ free speech and expression, or that they lose their access to public funds.

Although Teachout noted that the state would likely have difficulty including criteria regarding a school’s hiring practices.

He explained that religious schools are entitled to a “Ministerial Exception,” which means states cannot require licensed religious schools to comply with state anti-discrimination hiring laws. The creation of criteria dictating hiring practices, it could be argued, interferes with the institution’s free exercise of religious views.

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

While it’s unclear how quickly religious schools can qualify for the state’s tuition reimbursement program, if at all, Teachout noted that it could be sooner rather than later.

“If Vermont doesn’t act quickly to replace the current system with something like S.219, I think the courts will likely, without much hesitation, find Vermont’s current approach inconsistent with the Court’s decision. (supreme) in the Maine case,” he said.

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

jim.sabataso @rutlandherald.com

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