Vermont to schools: How religious are you?

When Vermont parent Heather Williams asked why her state wasn’t following a 2020 U.S. Supreme Court ruling that required state tuition subsidies for private schools to include religious schools, education officials gave a surprising answer: It doesn’t apply here.

In a lawsuit filed in federal court on Thursday, Williams and her husband, Joseph, contend that a Vermont tuition program discriminated against their two children. The program provides a tuition benefit for students who live in towns without public schools, but officials would not allow the Williams children to participate because they attend a religious high school.

Under Vermont’s program, towns directly pay the full amount of tuition, up to an approved tuition rate, on behalf of students attending either a public school in another district or an approved private school. Much like a tuition voucher arrangement, the program gives parents a choice. Yet officials denied the Williams family’s choice of a Catholic school, Mount St. Joseph Academy in Rutland, despite the Supreme Court’s 2020 ruling in Espinoza v. Montana Department of Revenue.

In Espinoza, the court struck down a Montana constitutional amendment that barred state funding from going to religious schools. The justices ruled that while a state need not support private education, should it choose to do so, it cannot discriminate between religious and secular schools. A federal court in Maryland applied a similarly even-handed treatment last December when it ruled that state officials engaged in viewpoint discrimination when they booted a Baltimore-area Christian school from a state tuition assistance program.

Vermont officials’ indifference comes in spite of a federal appeals court ruling last June that barred the state from excluding religious schools from rural tuition funding. In that case, state officials argued that the Espinoza reasoning did not apply because they were not discriminating against an individual or school because of its religious status but against the religious use of state funds. The appeals court rejected that distinction.

In the Williams family’s case, school officials required Mount St. Joseph Academy (MSJ), operated by the Roman Catholic Diocese of Burlington, to submit information about the breakdown of secular and nonsecular programming so that the school board could determine the tuition amount.

After the Catholic school’s administrators objected, school board officials admitted they did not know how to quantify the amount of religious exercise. “The Catholic faith and its values are woven into every aspect of life at MSJ, including throughout its curriculum and courses,” argue the school and the Williamses in their lawsuit. “MSJ cannot isolate or quantify the religious quantity of the education it offers because faith permeates its environment.”

Alliance Defending Freedom attorney Paul Schmitt, who represents the school and the family, said that with both a Supreme Court and U.S. Court of Appeals ruling on the side of parents, the law is clear.

Given what we’ve witnessed in the last two years … I would say a lot of this is either a hostility towards religion or a complete misunderstanding of what religious schools are and what they do,” Schmitt said.

Any constitutional questions posed by Vermont’s Town Tuition Program may be answered soon by the Supreme Court. In December’s oral arguments in Carson v. Makin, the court considered the constitutionality of a similar Maine tuition assistance scheme. The justices seemed inclined to reject Maine’s distinction between approved religious schools that do not propagate the faith but believe it is lived out in service to others, and disapproved schools that teach every subject through the lens of faith. That distinction echoes Vermont’s attempt to bar tuition for religious uses and allow tuition for school functions that look secular.

Schmitt hopes the ruling in Carson, expected by the end of June, will ultimately end Vermont’s effort to exclude religious families and schools from a benefit offered to the nonreligious. “Our point … is that if you give families a choice, you shouldn’t take away their ability to choose the best school for their kids just because it’s religious or teaches from a religious perspective,” he said. “Officials in Vermont just can’t get it out of their heads that they can’t do that.”