House Education briefing: Supreme Court rulings complicate Vermont town tuition decisions

At a Jan. 22 meeting of the Vermont House Committee on Education, Beth St. James of the Office of Legislative Council briefed lawmakers on recent U.S. Supreme Court decisions and the legal tension those decisions create with Vermont’s compelled support clause and a 1999 Vermont Supreme Court decision.

St. James told committee members the U.S. Supreme Court has repeatedly held that a state that offers a generally available public benefit may not disqualify otherwise eligible recipients solely because they are religious. She summarized two earlier cases and the more recent decision commonly known as Carson, telling members, “a state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The presentation placed Trinity Lutheran Church of Columbia v. Comer (2017) and Espinosa v. Montana Department of Revenue (2020) as foundational precedents that the court relied on in Carson (commonly cited as Carson v. Makin). St. James said Trinity Lutheran involved Missouri denying a playground grant to a religiously affiliated applicant and held the denial violated the free exercise clause because the benefit was generally available. Espinosa concerned Montana tax-credit-funded private-school scholarships; the Supreme Court held once a state provides a generally available public benefit, it cannot exclude recipients solely because they are religious.

St. James described the Carson decision as extending that reasoning to Maine’s town tuition program, where state law previously required participating schools to be nonreligious. She said the Supreme Court held the exclusion of religious schools violated the First Amendment, and the court declined to draw a narrower rule that would allow excluding recipients based on the anticipated religious use of funds when the exclusion is effectively status-based.

Those federal holdings, St. James said, sit uneasily with Vermont’s compelled support clause. Quoting Vermont’s language as discussed in the briefing, she noted the clause states that “no person can be compelled to support any place of worship contrary to the dictates” of conscience. The 1999 Vermont Supreme Court decision in Chittenden School District arose after the state withheld education aid from a district that paid tuition to religious private schools; the Vermont court found a district violated the compelled support clause when it reimbursed tuition for a religious school “in the absence of adequate safeguards against the use of such funds for religious worship,” St. James said.

St. James told lawmakers that for nearly 24 years courts and the Legislature have not adopted standards defining those “adequate safeguards,” leaving school boards to make tuition decisions at the local level while weighing federal precedent and Chittenden. She said the absence of statewide standards creates potential liability for districts regardless of which legal path they follow.

St. James also described more recent litigation and administrative developments. She said several federal suits tied to town-tuition denials have settled and that the state’s Vitali case, which challenged the town tuition program under Vermont’s common benefits clause, resulted in the Vermont Supreme Court finding plaintiffs failed to state a claim. As a consequence of settlements in other matters, St. James said, the Vermont Agency of Education issued guidance on Sept. 13, 2022, advising school districts that, in light of Carson, “school districts may not deny tuition payments to religious approved independent schools or religious independent schools that meet education quality standards based on the Vermont Constitution’s compelled support clause,” while also directing districts to evaluate tuition requests on an individual basis taking both Carson and Chittenden into account.

She noted a point of practical friction: the State Board of Education’s approved independent school rules and renewal process now include an attestation tied to the state’s anti-discrimination requirements. Some religiously affiliated schools have sought to attach caveats to those attestations, arguing compliance could conflict with religious tenets; St. James said federal litigation over whether the requirement must be enforced is pending in the U.S. court system, including briefing in the 2nd Circuit on injunctive relief. She added that Maine faces parallel litigation in the 1st Circuit.

St. James framed the present situation as unsettled: federal free-exercise precedent limits a state’s ability to adopt a stricter separation of church and state than the U.S. Constitution requires, but Vermont’s own compelled support clause and Chittenden remain good law until a higher court rules otherwise. She recommended school boards consult counsel and weigh both lines of authority when making tuition decisions.

The briefing closed with committee members asking for additional clarification from the State Board of Education and for more detail on the independent-school approval process and what might constitute “adequate safeguards.” St. James said no branch of Vermont government has adopted a definitive standard for those safeguards since Chittenden.

St. James’s presentation supplied lawmakers with a legal overview and a caution: local tuition decisions remain exposed to conflicting authorities and litigation risk until courts or the Legislature provide clearer direction.