A Supreme Court ruling earlier this summer lifting restrictions on using public funds for private religious schools could have implications for Vermont’s school choice and tuition voucher programs.

In June, the U.S. Supreme Court ruled in a 5-4 decision that religious schools cannot be excluded from participating in publicly funded programs that provide financial assistance to students attending private schools. The case, Espinoza v. Montana Department of Revenue, was brought by three families who wanted to participate in a private school tax credit scholarship program.

But Montana’s Constitution, like many others around the country including Vermont’s, prohibits the use of public funds to aid religious institutions. Currently, 38 states, including Vermont, prohibit the use of public money to aid parochial schools.

The court, however, ruled that the U.S. Constitution’s protection of religious freedom superseded the state constitution.

“A state need not subsidize private education, but once it decides to do so it cannot disqualify some private schools because they are religious,” Chief Justice John Roberts wrote in the majority opinion.

It’s not the only case making waves in Vermont’s private religious schools.

Earlier this month, the 2nd Circuit Court of Appeals granted an injunction in a lawsuit involving students from Rice Memorial High School in Burlington seeking access to the state’s dual-enrollment program. The state-funded program allows Vermont high school juniors and seniors the ability to take college courses with full tuition reimbursement.

The injunction, issued in light of the Espinoza case, will permit the students involved in the lawsuit to access the program while the appeal is pending.

Last week, the Department of Justice filed a brief in the case, stating, “The Supreme Court’s repeated holdings ... that religious entities and their adherents cannot be excluded from or disadvantaged under public programs and benefits based on their religious character, make clear that A.H. and Rice’s disqualification from the Dual Enrollment Program is impermissible under the Free Exercise Clause.”

According to EdChoice, a nonpartisan, nonprofit organization that follows school choice issues around the country, more than half of all states currently provide some sort of educational choice option in the form of vouchers, educations savings accounts, tax credits, scholarships or deductions.

Now, several families in Rutland County are testing the waters.

Paul Gallo is a Rutland Town resident with a daughter entering 12th grade at Mount St. Joseph Academy in Rutland. The town is one of around 80 statewide that does not have a high school of its own.

According to current Vermont statute, a student living in such a town is able to apply for a tuition voucher to attend high school elsewhere. Religiously affiliated schools are currently barred from the program.

For a student tuitioned at a public school, a town pays the receiving district the equivalent of that district’s average per pupil costs. For nonreligious private schools, a student receives a voucher worth up to the average announced tuition for Vermont public schools or the private school’s tuition, whichever is less. For the 2020-21 school year, the average announced tuition for grades 7-12 is $16,233.

According to EdChoice, 4% of Vermont students are eligible for vouchers.

In recent years, Act 46 added a wrinkle by requiring students in some towns to attend a high school within one of the newly created unified school districts.

However, a number of towns around the state still qualify for the voucher program. In Rutland County, that includes Rutland Town, Ira, Wells, Middletown Springs, Hubbardton, Mount Tabor, Danby, Mendon and Chittenden.

Given the Espinoza ruling, Gallo said he believes MSJ should now be an option.

“Mount St. Joseph Academy has been a big part, generationally, of our extended family, and the opportunities that it provides for the community as an option is important,” he said Thursday.

Gallo confirmed that several other area families are also filing for tuition vouchers to MSJ.

“I think it’s good to challenge the system as it lives — as far as education — it just creates a better environment,” he said.

Christopher Sell, superintendent of the Greater Rutland Central Supervisory Union, which serves several tuitioning towns, including Rutland Town, was unavailable for comment Friday.

Lisa Miser, chairwoman of the GRCSU board, said Friday that she was not aware of any requests for vouchers to MSJ, but explained that Sell would be the one fielding them.

Speaking for the Vermont Agency of Education, Ted Fisher, director of communications, declined to comment on the 2nd Circuit injunction.

A request for comment regarding the potential implications of the Espinoza case, was not available by the end of business Friday.

Jeanne Gearon, superintendent of schools for the Roman Catholic Diocese of Burlington, also declined to comment for this story.

This legal history of Vermont’s tug of war over allowing religious schools to receive public aid is a long one.

Tom Valente, an MSJ alumnus and former chairman of the Rutland Catholic Schools Board, has followed it closely.

Valente said the state’s current situation can be traced back to the 1960s.

In 1961, the Vermont Supreme Court ruled in the case, Swart v. South Burlington Town District, that including parochial schools in town tuitioning programs violated the First Amendment Establishment Clause of the U.S. Constitution.

In 1993, in Campbell v. Manchester Board of School Directors, the Court overturned Swart, finding that the reimbursement was not in violation of the Establishment Clause. Despite the ruling, the department of education refused to allow students to choose religious schools.

Valente noted, “The decision did not address the constitutionality of the reimbursement under the Vermont Constitution” since previous decisions held that U.S. Constitution was much more prohibitive regarding church-state interaction.

Following the Campbell case, the Chittenden School District approved tuition vouchers to MSJ for 15 Barstow Memorial School students. Litigation ensued before any payments were made.

In the case, Chittenden Town School District v. Department of Education, in 1999, the Vermont Supreme Court ruled that the Vermont Constitution prohibits a municipality from reimbursing the tuition of students who attend a “pervasively sectarian school.”

That’s where the issue has sat until now.

Valente said the Espinoza decision could change the school choice landscape in Vermont, explaining that “U.S. Constitutional rights take precedence over any contrary state laws or state constitutional provisions.”

“So applying Espinoza, despite the Chittenden decision, Vermont towns that offer school choice involving private schools cannot exclude religious high schools if those schools are chosen by parents for their children, because doing so would be in violation of the U.S. Constitution,” he said.

Nonetheless, Valente said he couldn’t predict how the state would respond to the voucher requests in light of recent developments.

He acknowledged that even if Vermont’s dozen or so religious high schools were admitted into the voucher program, the impact would not be widespread — it would only affect tuitioning towns, and in those towns there would likely be a limited number of students who actually chose to attend a religious school.

Though he conceded for MSJ, it would be a welcome development.

“Certainly for MSJ, it would make it much easier for parents to make that choice, despite their financial circumstances,” he said.

jim.sabataso

@rutlandherald.com

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