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Supreme Court changes put state school choice in flux

A new U.S. Supreme Court precedent allows public funding of religious schools. With state laws suddenly in conflict, lawmakers are also fighting those who want to keep things just as they are.

Does the United States still believe in the separation between church and state?

This is one of the big questions making big waves in Vermont right now. In 2022, the U.S. Supreme Court’s Carson v. Makin decision required states with voucher systems to offer them to religious schools as well as to secular ones.

Vermont education often depends on vouchers because this small state has a limited number of schools. Some towns do not have a high school. Some of those towns also lack an elementary school. In these towns, taxpayer dollars, in the form of vouchers, can go to a private school of the parents’ choice.

Exempted from vouchers are the state’s religious schools, which by state law have not been able to receive public tax dollars. Now, thanks to Carson v. Makin, Vermont law, which still upholds the separation of church and state, is out of sync with U.S. law.

“The Supreme Court decision marks the first time that the court has explicitly required taxpayers to support a specific religious activity,” said Rep. Laura Sibilia, I-Dover. “Now effectively, if parents are offered school choice tuition dollars for their student, they cannot be banned from choosing religious education.”

Sibilia represents towns such as Dover, Stamford, Readsboro, and Wardsboro, which only operate elementary schools, and towns like Searsburg and Stratton, which do not operate any schools. The court ruling has left parents of schoolchildren in these towns sometimes frantic.

“Those students have a limited choice,” Sibilia said. “The Supreme Court is saying that if you are offering parents a choice and then tell them they may not choose a choice that aligns with their religion, you are infringing on their religious freedom.

“So that presents a conundrum in Vermont, where Vermonters cannot be compelled to pay for religious worship,” she said. “So the United States laws are not aligned with the Vermont Constitution. They’re misaligned.”

Rights in conflict

This year, the Legislature is hard at work on the issue. Falko Schilling, the ACLU’s advocacy director, testified to the House Committee on Education on the implications of Carson v. Makin.

“The First Amendment of the U.S. Constitution includes the Establishment Clause, which prohibits the government from ‘establishing’ a religion,” Schilling testified. “This is the origin of the ‘separation of church and state,’ and has historically been understood to prohibit government entanglement with religion.

“Though the Establishment Clause’s contours have changed over time, traditionally the U.S. Supreme Court had understood it to require states to be cautious about commingling government functions with religion.”

However, Schilling explained, “The First Amendment also includes the Free Exercise Clause, which protects an individual’s right to practice their religion free from governmental intrusion.”

That clause prohibits the government “from ‘discriminating’ against religious persons or a particular religion,” he continued. “The arc of the past few years is that the new Supreme Court majority has generally viewed preferences for secular government or services as a form of ‘discrimination’ against religion.”

Vermont has its own related constitutional provision, known as the “Compelled Support Clause.”

Chapter 1, Article 3 of the Vermont Constitution states, in part, “that no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience.”

“This is an individual right that includes elements of Free Exercise and Establishment Clause concerns, but — at the risk of oversimplifying — has been understood to essentially mean that Vermont cannot force a taxpayer or citizen to subsidize religious programming or institutions against their will,” Schilling wrote.

In the past, the U.S. Supreme Court has already weakened the Establishment Clause to allow states to fund some religious programming.

But things have changed since the appointment of right-wing justices Neil Gorsuch in 2017, Brett Kavanaugh in 2018, and Amy Coney Barrett in 2020.

“The newly constituted Court has aggressively expanded the Free Exercise Clause in this context to require states to fund religious schools if they fund other secular private schools,” Schilling said. “The Court’s ruling in Carson v. Makin is the latest domino in this chain.”

This puts Vermont in a tenuous position.

“Vermont, accordingly, has a longstanding commitment to guaranteeing access to high-quality public education and ensuring that our public education system is well-funded, equitable, and rooted in democratic values,” Schilling wrote.

“Given the abundance of small towns and rural areas in Vermont, our education system relies in part on non-public schools to educate students living in areas not served by public institutions, or ‘school choice towns.’ For years, our state has paid public tuition to those private schools, while trying to maintain safeguards, including those designed to prevent public dollars from funding religious instruction.”

Carson marks a substantial shift in constitutional law. Therefore, it makes a shift “in how we think about our traditions — specifically, how we balance the First Amendment rights to freely express one’s religion with protecting against government establishment of religion,” Schilling wrote.

“As a result of this decision, the Supreme Court has put Vermont in a very difficult position as it seeks to comply with the Court’s ruling while still upholding Vermont’s own constitutional protections, democratic values, and traditions.”

A matter of discrimination

For Rep. Sibilia, the issue comes down to discrimination. She strongly believes the state should not give money to schools that might discriminate against its students on religious grounds, especially if they are gay or transgender.

“The court did not address the question of whether a religious institution can cite sincerely held religious beliefs to violate laws against discrimination,” Sibilia said.

Last year, the state implemented anti-discrimination rules for private schools wanting to apply for state money. The heads of those schools must sign statements affirming that their schools will not discriminate.

Now, according to a story in VtDigger, two Christian schools are pushing back against the rules.

“As a Christian-based school we have a statutory and constitutional right to make decisions based on our religious beliefs, including those pertaining to marriage and sexuality,” three leaders of United Christian Academy in Newport wrote in a statement that they filed with the Vermont Agency of Education.

Mid Vermont Christian School, a private religious school in Quechee, submitted essentially the same statement. And last month, its girls’ basketball team forfeited a playoff game rather than compete against a team with a transgender player.

These schools “have a history of discriminatory practices against LGBTQ human beings,” Sibilia told The Commons.

“I strongly support parents having the choice to enroll their students in religious K-12 schools and paying out of pocket to do so,” Sibilia wrote on her blog. “I’ve not taken a public position on public funding being used to provide tuition to religious schools.”

Sibilia wrote that she has “deep concerns about violating the separation of church and state, even with the technicality that the U.S. Supreme Court has ruled on, and about, discrimination towards other religions, women and LGBTQ people that is inherent in some religions. I’m troubled by the recent policy spaces created by the court rulings.”

Freedom, liberty, and the First Amendment

To the surprise of many, the First Amendment of the U.S. Constitution appears ambivalent on the subject of separation between church and state. It states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”

For help understanding the issue, The Commons went to Constitutional scholar Dr. Meg Mott.

“For people who are feeling concerned about liberties, the Carson vs. Makin decision may feel like an abridgment of the ‘establishment clause’ in the First Amendment,” Mott agreed.

She contrasted that with the Vermont Constitution, which was written in 1777; the U.S. one was written in 1787.

“The people who are writing the Bill of Rights, James Madison and others, are looking at all these state constitutions,” Mott said. “So when they wrote that Congress shall make no law with respect to the establishment of religion, or the free exercise thereof, those two clauses to a modern ear may seem like two different things.”

First, “‘We’ve got to keep our country from being Christian, or any other kind of established religion.’ Right? Congress shall make no law respecting the establishment of religion,” Mott continued. “And the other one is saying, but ‘We have to respect individual rights to religion, to worship, however you want.’”

(1)So if a person argues that taxpayers cannot be compelled to fund parochial schools, they have to argue that a taxpayer cannot be compelled “to support a minister or the making of a minister,” Mott said.

Essentially, according to Mott, “making a minister” implies a graduate-level education, and that is not what is at play here.

Also, “support” becomes the operative word. If a person does not believe in God at all, for example, can they be forced to support a place of worship with their taxpayer dollars?

“Personally, I get concerned when the state starts saying we will only send our money to this kind of private school, but we won’t fund that kind of private school,” Mott said. “And most of these private schools around here have religious backgrounds anyway, if you go back far enough. It was some Quaker group or Presbyterian group or Methodist group.”

This “new” way of loosening the separation between church and state has been a long time coming, Mott said.

“There was a Lutheran School in Missouri that applied for funds to get this rubberized treatment for their playground,” Mott said. “And the state of Missouri said ‘No, sorry, you can’t. You’re a religious school and we don’t [give] funding for religious schools.’ But they said, ‘Well, it’s not for religious education. This is for a playground.’

“And the Supreme Court turned that over years ago and said, ‘You can’t discriminate that way. You can’t say we want this playground equipment or material available for all different schools except this school.’ And that started to make this turn, that if they’re going to provide a service to individuals, they have to do it across the board.”

The Carson v. Makin case was brought by parents against the State of Maine, not by the state or a public institution. This is an important distinction, Mott said.

“It has to do with individual rights,” Mott said. “The court said the state should not interfere with individual rights. The plaintiffs bringing these cases are parents who say, ‘Why is it that the state of Maine is able to fund all sorts of private schools, but my school, the school I want to send my kids to, is not on the list?’

“So what the Supreme Court did is look at the Maine Department of Education, how it decides who gets funded and who doesn’t,” Mott continued. “And they saw that some private schools that had a religious history were given funds. People could send their kids to those. And to schools that were more explicitly religious, they couldn’t.”

And so, “because that was discrimination on the parents, the Court said, ‘You can’t do that. You have to allow parents the choice to send their kid where they want to go,’” she said.

The Vermont Constitution backs this up when it talks about freedom of conscience, Mott said.

“So if a parent says, ‘I really feel this is what my kids need, and it’s aligned with my beliefs, it’s aligned with my standards, and they have high academic standards because they pass the accreditation,’ then the state has to allow the parent to send the child to that school,” Mott said. “The parents’ freedom of conscience, that has got to be protected.”

The equal protection argument

Going further, how does the 14th Amendment of the U.S. Constitution play out?

“It says that you can’t treat two sets of parents differently,” Mott said, using in her examples two area schools, one a Catholic school in Brattleboro and the other a non-sectarian private school in Putney.

“One set of parents says, ‘I want to send my kids to St. Michael’s and another set of parents says, ‘I want to send my kid to The Putney School,’” she said. “And both parents say, ‘We’ve looked into the schools and we feel like these are the best match for our kids.’ And Vermont says yes to Putney School and no to St. Michael’s School, because Vermont at the moment has a non-sectarian requirement?”

To make this even more complicated, the Vermont-NEA, which represents 13,000 public school teachers in the state, is in favor of eliminating vouchers entirely — not as a matter of religion. They feel that all the state’s money should go to supporting public education.

“They argue — and it’s a legitimate argument — that if Vermont is putting all this money into private schools, it’s giving parents a lot of incentive, particularly middle class and upper class parents, to pull their kids out of the public schools,” Mott said. “That means the public schools are dealing with high-needs students, and that’s not great.”

She called that argument “a very strong case to just get rid of the voucher program.”

Virtue, vice, and religious pluralism

The First Amendment of the U.S. Constitution and Article 3 of the Vermont Constitution aside, Mott said, there is another twist to the tale.

“Nobody seems to be talking about this, but it’s Chapter II, Article 68 in the Vermont Constitution,” she said.

That article: “Laws for the encouragement of virtue and prevention of vice and immorality ought to be constantly kept in force, and duly maintained in each town unless the general assembly permits other provisions for the convenient instruction of youth.

“All religious societies or bodies of people that may be united or incorporated for the advancement of religion and learning or for other pious and charitable purposes shall be encouraged and protected in the enjoyment of the privileges, immunities and estates, which they in justice ought to enjoy under such regulations as the general assembly of the state shall direct.”

That means that according to the state constitution, religious societies have a role in educating Vermont youth because, Mott said, “they are understood to encourage virtue and prevent vice. So I think there’s a strong case to be made that money should go to St. Michael’s if it goes to The Putney School.”

Religious pluralism is an option here.

“What does that mean?” Mott said. “It means that you give parents a choice.”

Specifically, she said, “You say, ‘Let’s make the public schools as great as they are so parents want to come. Let’s allow parents, if they want to go to private schools, to go to private schools. Let’s let people, if they want to home school, to home school. Let’s give people real choice.’”

“One of the most exciting things about the Constitution is that it allowed for religious pluralism,” Mott said. “It didn’t force anybody to take up a religion. You could be an atheist. Let the people decide on their own, based on their own conscience.”

The Legislature gets involved

Getting rid of the voucher program is exactly what the Vermont Legislature is considering in both chambers.

The Senate’s bill essentially eliminates school vouchers except for schools that serve students with disabilities and for four historical institutions: St. Johnsbury Academy, Burr & Burton Academy in Manchester, Lyndon Institute, and Thetford Academy.

The ACLU’s Schilling agrees with this method of aligning the state’s schools with the Supreme Court decision.

“The most straightforward way that Vermont can balance its values and constitutional mandates is to limit the use of public funds to go only to public schools,” Schilling wrote.

As an alternative, the state can set standards that have to be met by parochial as well as private schools.

“Another constitutionally viable option is to require school districts that do not maintain public schools to designate a select number of public and independent schools that are eligible to receive public funds from their district,” Schilling said.

The Senate bill in its current form takes this approach, calling for such towns to designate up to three schools as the public schools of the district.

“Under such a program the Legislature could establish nondiscriminatory and universally applicable standards to help districts select what schools would best meet the needs of their communities,” Schilling said.

“Regardless of which approach Vermont takes to school funding, it should strengthen anti-discrimination protections for students and make those protections apply to all schools, across-the-board, without exception.”

Mott has a different and perhaps more controversial view: that children should not be protected against discriminatory actions but should learn from them.

“The Supreme Court is going to say that individual parents have a right to make choices for their children based on their conscience,” Mott said. “The whole First Amendment, all that beautiful language about free press, free speech, right to assembly, free exercise of religion — underneath all of that is the basic understanding that you get to follow your conscience.”

The Legislature is still wrestling with this issue and, Shilling told The Commons, it “does have the power to make changes to the program this year if they wanted to, but I see that as highly unlikely.”

Under the Senate bill, towns that would be required to designate schools to send their students to “would not have to change current practices until 2028, but could do so sooner,” he said. “There are, of course, other proposals under discussion that could take different approaches.”

To hear her constituents’ beliefs, Rep. Sibilia held town forums in Stratton, Wardsboro, Jamaica, and Dover. She said she learned quite a few things.

The first lesson came as no surprise, she said: It confirmed that parents feel very strongly about their children’s education and the opportunity it can provide them.

Further, she learned that discrimination was an important topic to many parents. Some are concerned about discrimination in local public schools — concerns that are going unaddressed, she said.

Sibilia said she learned that “we don’t all have a commonly shared language about what kind of discrimination is illegal. And while most meeting attendants that spoke noted they are opposed to discrimination, a few were OK with a few schools discriminating.”

Some people said that “districts that did not have school choice were more alarmed that Vermont is paying taxpayer dollars to religious schools than districts that do have school choice,” Sibilia said.

She also asserted that “Burr & Burton is telling parents that they will not comply with the designation, that discrimination is not OK, and that legislators are trying to destroy the local school system,” Sibilia said.

A February letter from Mark Tashjian, headmaster of the self-described “independent high school with a public mission,” urged voters in Winhall and in the Taconic & Green Regional School District to support articles on their respective warrants affirming the status quo and specifically rejecting “legislation that would change the current structure.”

Burr & Burton’s March alumni newsletter implored readers to vote for the school budget and “if you no longer live in the area, please reach out to Vermont family and friends and urge them to attend and support Vermont’s current education system.”

Winhall voters approved the article by unanimous voice vote, and Taconic & Green district towns approved the article 1,701–174.

In general, Sibilia said, “Parents and residents feel like they need more information about the court cases and what constitutes discrimination. I am working to set up additional forums with legal experts to help us develop shared understanding of these things.

“The independent school lobby is working very hard to maintain the status quo and is not acknowledging that this perpetual strategy has led to us paying public dollars for religious worship today.”

A Feb. 24 memo to state lawmakers on the Senate and House education committees from the Bennington-Rutland Supervisory Union, the Taconic and Green Regional School District, the Mettawee School District, and Winhall School District acknowledged that the bills under consideration represent the Legislature’s response to Carson v. Makin, but they also represent “an attack on ‘school choice’ as it exists now.”

“We believe that the intent of this change is to allow the legislature to exclude religious schools from the list of approved schools and thus continue to prevent them from receiving tuition payments,” the letter continued. “Unfortunately, what this change actually does is exclude virtually all Vermont independent schools.”

Ultimately, Sibilia said she believes that the House and Senate bills will be able to maintain “historic community choice while modernizing Vermont’s public education system to align with both Vermont and U.S. Constitutional requirements.”

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Originally published in The Commons issue #707 (Wednesday, March 22, 2023). This story appeared on page A1.

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