Updated April 22, at 11:11 a.m.
The State Board of Education on Wednesday ordered three Vermont school districts to reimburse families who live in “choice” towns for the tuition they paid out of pocket this year for their children to attend religious schools.
The board’s decision was not entirely unexpected, given recent court rulings at the state and national levels. But it still does not settle the fundamental question at the heart of several lawsuits still pending in Vermont and elsewhere: To what extent, if any, can states exclude religious schools from receiving taxpayer funds?
Vermont is currently defending itself in two separate lawsuits, brought in the wake of a U.S. Supreme Court case this summer, Espinoza v. Montana Department of Revenue. In the 5-4 decision, which was widely expected to have major implications for school choice programs across the country, the court held that Montana’s ban on families applying state tax credit scholarships at religious schools unconstitutionally violated religious freedom.
The Espinoza ruling nullified Blaine amendments in state constitutions, which prohibit taxpayer-funded benefits flowing to religious entities solely because they are religious.
But it left open the possibility that, while states could not deny entities funds based on their status as religious institutions, they might still regulate how those funds are used.
That distinction is the reason it remains unsettled whether Vermont’s own church-and-state constitutional protection — its “compelled support clause” — will withstand Espinoza. But the lawsuits pending before the courts, which argue that Vermont is acting unconstitutionally by excluding religious schools from its extensive voucher program, aim to test precisely this.
One such suit — being litigated on behalf of four families by the Institute for Justice, a powerful Libertarian law firm — took a detour to appeal to the State Board of Education, which also has the power to hear appeals when families are denied reimbursements under the state’s town-tuitioning program.
The districts named in the appeal and lawsuits are the Ludlow-Mt. Holly, Rutland Town, Hartland, and Mt. Ascutney school districts. The board dismissed the appeal of one family, who live in Mt. Holly, since the local district agreed in March to pay the tuition after all.
The state board took care to emphasize in its ruling that the order is not setting a precedent. The constitutional principles that govern the appeals are “complicated and not fully settled,” the board wrote, adding later that it could not, “in this context, provide any binding direction to school districts.”
The school districts named in the appeal could not show evidence that they had denied the families their tuition reimbursements for any reason other than the fact that the schools were religious, the state board wrote. And on those grounds, the state board was “unable to conclude on this limited record that the tuition denials satisfied the First Amendment standards set forth in Trinity Lutheran and Espinoza.”
“The board’s order in these cases is therefore narrow: that the tuition denials be reversed and the tuition payments made,” the decision stated.
Vermont has blocked taxpayer funding for religious schools since a landmark Vermont Supreme Court case in 1999. In Chittenden Town School District v. Department of Education, the justices ruled the district had violated the compelled support clause when it allowed tuition money to be paid to a religious school “in the absence of adequate safeguards against the use of such funds for religious worship.”
But for 20 years, neither the Legislature nor the Agency of Education ever elaborated on how those safeguards might look, and religious schools have, as a general principle, simply been excluded from the state’s voucher program, which reimburses families who live in towns without schools for tuition at the school — public or private — of their choice.
The state has suggested, through guidance it recently released — and then rescinded — that it may finally try its hand at creating such “safeguards,” by asking schools seeking tuition reimbursements to simply self-certify that the money will not fund religious instruction directly.
But that’s not acceptable, according to David Hodges, co-counsel on the case for the Institute for Justice. Despite the board’s ruling, he said, the underlying lawsuit will continue, with the explicit aim of overturning Chittenden outright. A hearing is set for later this month at the federal court in Burlington.
“We believe the First Amendment guarantees the free exercise of religion. And the free exercise of religion isn’t simply limited to someone’s religious status, but how they exercise their religion,” he said. “And to the extent that Chittenden requires school districts in the state to impose limits on the free exercise of religion, we believe that it is unconstitutional under Espinoza.”
William Ellis, an attorney at the Burlington firm McNeil Leddy & Sheahan who represented the school districts, declined to comment, saying he still needed to confer with his clients. Ted Fisher, a spokesperson for the Agency of Education, also said the agency had no immediate comment.