Vermont State School Board Orders Payment Of Tuition To Religiously Affiliated Schools

 On April 21st, 2021 in a re Appeal of Valente the Vermont State Board of Education ordered local school boards in districts without public high schools to pay students' tuition so they can attend religiously affiliated high schools in place of public schools. This appeal is a joint appeal by three families who originally filed separate appeals with the State Board of Education after asking their respective school districts to pay tuition for the 2020/21 school year. In each case, the tuition request was denied by the school districts which resulted in the families paying the tuitions with their own money. The appeals all focused on the same legal issue of if it is constitutional at both the state and federal level for public tuition payments to go towards religious schools when there are no public schools.

  

Vermont law requires school districts that do not have public high schools to pay tuition for students to attend another “independent” private school. However, in 1999 the Vermont Supreme Court in Chittenden Town School Dist. v. Dept. of Educ. placed limitations on the ability of districts to pay tuition to religious schools due to this program being inconsistent with the Establishment Clause. In this case the Chittenden School Board voted to allow tuition reimbursement to MSJ, a religious school, and as a result the Commissioner of Education terminated state aid to education to the district. This is because the Compelled Support Clause of the Vermont Constitution (Ch.1, art.3) does not focus on the establishment of religion and only restricts the state’s support of religious worship, which was a daily activity at MSJ. The court decided that a school board would be violating this section of the Vermont Constitution when it reimburses tuition for a sectarian school in the absence of adequate safeguards against the use of such funds for religious worship, which did not exist. As a result, the court issued its opinion that “tuition payments from a school district to pervasively sectarian high schools, or the parents of the children who attend, would have the effect of a direct subsidy to religious schools in violation of the United States and Vermont Constitutions”. In contrast the U.S. Supreme Court has held that the 1st Amendment bars the exclusion of religiously affiliated schools from general aid programs. In order to deal with this discrepancy, the Board of Education announced that “School districts ... could ask all ... schools to certify that public tuition payments will not be used to fund religious instruction or religious worship”. The hope was this would place all independent schools on an equal footing, regardless of religious affiliation, as all independent schools would be required to provide the same reassurance. Furthermore, schools would be allowed to decide whether to accept these tuition payments, so there was only an indirect burden on the schools similarly to the case of Bob Jones University v. United States.

 

The primary family involved with the new appeal case, the Valentes, are residents of Mount Holly Vermont. Their school district the Ludlow Mount Holly Unified Union School District does not have a designated public high school. Due to the lack of a public school their child, D. V., attends Mount St. Joseph Academy (MSJ) which is a religious school. MSJ was the only approved independent sectarian secondary school and was also the school being examined in the Chittenden case. In that case it was determined at MSJ “secular and sectarian aspects of its educational program are intertwined”. Additionally, students are required to start the day with a prayer and attend many other religious activities. As a result, the Valentes were told the district could not send the school tuition money because it violates Article 3 of the Vermont Constitution. After multiple appeals the Valentes request was accepted assuming they followed the safeguards outlined after the Chittenden case. However, because the Board of Education cannot provide any binding direction to school districts the guidance that the Board offered is only guidance and does not settle the constitutional question in this case. The courts will still have to resolve “whether the restriction that Chittenden requires can co-exist with First Amendment requirements”.

 

Overall, this case is important for the interpretation of the Establishment Clause because this is a unique situation where the Establishment Clause needs to be violated in order for students to receive an education while preserving the rights of parents to choose where they send their children, due to the lack of public schools. Additionally, this case could open the door for religious schools to gain access to other public funds they have been restricted from due to the Establishment Clause assuming that the courts are able to resolve whether restrictions such as those laid out in the Chittenden case can coincide with First Amendment requirements. I believe that religious schools should be able to receive aid from this public fund assuming there are safeguards in place to ensure the money was not being used for religious instruction. This is because the schools that would receive the money would have to be approved and accredited making this program neutral to religious and non-religious schools. Furthermore, because the U.S. Supreme Court has held that the 1st Amendment bars the exclusion of religiously affiliated schools from general aid programs, I think it will be hard to justify excluding a school solely because it is religiously affiliated in this situation. However, while I believe that the guidance provided by the Board of Education in the Chittenden case is a good start in terms of resolving the issue of making this program compliant with both the Vermont and U.S. constitutions this guidance needs to be formally codified to ensure there are adequate safeguards for these public tuition payments to religious schools. Assuming an independent religious school is in compliance with the regulations and restrictions enacted by a state, in order to be in compliance with the Establishment Clause, that school should be able to have access to a public tuition fund just like any non-religious independent school in order to preserve the neutrality between religion and non-religion, when there are no public schools.