Court Scraps Vermont Ban on Sending Tax Dollars to Religious Schools

Updated, June 9

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In the state of Vermont, where the constitution has long prohibited the use of tax dollars for religious purposes, a federal appeals court recently ruled that students in school choice districts can now use their town’s tuition assistance to attend a local Catholic school.

This ruling follows a significant decision by the Supreme Court last summer in Espinoza v. Montana Department of Revenue. The Supreme Court, in a 5-4 vote, stated that public funding for school choice programs cannot exclude religious educational institutions purely on the basis that they are non-secular.

The Alliance Defending Freedom, a Christian legal group that represented four Vermont high school students and the Roman Catholic Diocese of Burlington, is applauding the ruling as a clear victory. Paul Schmitt, legal counsel for the Alliance, stated, "Vermont’s program offers a public benefit to families to use at a school of their choice. The government cannot deny families this benefit simply because they chose to send their child to a religious school. That is unconstitutional and discriminatory."

He further adds, "This decision asserts that the First Amendment’s Free Exercise Clause safeguards families in Vermont from religious discrimination, just as it does in Montana."

However, legal experts and education scholars argue that the case is not as straightforward and may not be resolved yet. They draw a crucial distinction between prohibiting public funds from going to religious schools solely because they are non-secular, which Espinoza clearly prohibits, and implementing measures to ensure that "if you receive this money, you cannot use it to teach religion," according to Derek Black, a constitutional law professor at the University of South Carolina.

Vermont’s town tuitioning program has been in place since 1869, making it the oldest school choice program in the country. Until 1991, participating private schools were considered public schools with private boards, subject to the same regulations as other town schools, according to a 1989 memo from the Vermont Department of Education. Vermont’s program also differs from Montana’s funding system, where private school tuition is subsidized through tax credit scholarships, and donors receive tax breaks in exchange for their contributions, rather than the government directly funding private schools.

Since Vermont has never had specific rules outlining how taxpayer funds can be used at private schools, Black believes that the recent court decision is expected and likely to lead to further legislation. He stated, "I don’t see why this decision implies that Vermont should just surrender and allow churches to access funds freely. Instead, the state needs to be nuanced and establish restrictions on how these funds can be utilized."

Peter Teachout, a professor of constitutional law at Vermont Law School, agrees and argues that there should be a certification process to ensure that tax dollars are allocated to non-religious functions. He noted, "Private religious schools have many expenses that are unrelated to religious teachings," in an interview.

The issue arises from voucher programs implemented by certain districts. Many school systems in Vermont are too small to have their own high schools in every district, as former Vermont Secretary of Education Rebecca Holcombe explained. Therefore, some districts allow funds to follow students to nearby public high schools or provide tuition subsidies for enrollment in private schools.

Eli Hulse, a resident of South Hero, Vermont, who graduated from high school in 2015, attended such a district. He was homeschooled until the end of middle school and then transitioned to a small private school with tuition assistance from his town. Hulse mentioned that it took some time to adjust to the structure of classes, exams, and the expected writing style in essays. However, the smaller class sizes allowed for more personalized attention from teachers.

While Hulse’s family did not choose a religious school, other families in districts like South Hero do.

Rice Memorial High School (Facebook)

However, Holcombe remains cautious. The change raises new questions that need to be addressed, she explains. At Rice, the mission statement of the school emphasizes the importance of "loving learning, seeking God, and serving others" and is deeply integrated into every aspect of life. This raises concerns for Holcombe about how tax money can be allocated to the institution without supporting the teaching of religion.

Furthermore, Holcombe wonders what happens when these religious views conflict with the expectations of public-serving institutions. She raises the question of whether religion will be used to justify discrimination if Vermont subsidizes religious schools.

Holcombe points to Grace Christian School, a small religious K-12 school in Bennington, Vermont, as an example. The school’s handbook states that rejecting one’s biological sex is seen as a rejection of the image of God within that person, and compares homosexuality to bestiality.

In May, the school’s administrator informed a local news outlet that Grace Christian School has the right to refuse admission or discontinue enrollment of students if their behavior or activities are contrary to the biblical lifestyle taught by the school.

Holcombe argues that for students from districts that use vouchers, the government needs to clearly define what kind of education they are purchasing.

Despite any changes that may occur in Vermont as a result of the ruling, some observers predict that the case may eventually reach the Supreme Court. Last October, a U.S. Circuit Court of Appeals ruling in a Maine case upheld a ban on tuition payments to religious schools, which contradicts Vermont’s stance.