Federal appeals court rules Vermont cannot exclude religious education from private school tuition program
Vermont’s Town Tuition Program (“TTP”) requires school districts that lack a public high school to provide for its residents’ high school education by paying private school tuition. Because Vermont’s constitution guarantees that “no person shall be compelled to support a place of worship,” the Vermont Supreme Court, in a 1999 case (Chittenden Town), ruled that TTP funds cannot be used to reimburse tuition at a “sectarian” school unless the school takes steps to safeguard against the government funds being put to religious use. On the basis of that ruling, school districts in Vermont subject to the program have denied funding to religious schools. Now, however, a federal appeals court has halted the exclusion of religious schools from the state’s tuition program.
In an opinion explaining its ruling, the 2nd U.S. Circuit Court of Appeals agreed with the lower court’s conclusion that the practice of denying religious schools TTP funds runs afoul of the First Amendment. The court cited recent U.S. Supreme Court decisions disallowing state practices that base funding eligibility solely on religious status, even if the motivation is to comply with state law that forbids funding religion.
Last June (in Espinoza v. Montana Department of Revenue), the Court clarified that [the Free Exercise Clause] does not allow a state to apply a state constitutional prohibition on aid to religion that would “bar religious schools from public benefits solely because of the religious character of the schools.” The Court emphasized that “[s]tatus-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses” and that a state cannot justify discrimination against religious schools and students by invoking an “interest in separating church and State more fiercely than the Federal Constitution.”
The 2nd Circuit’s ruling in the Vermont case contrasts with a ruling last November from the 1st Circuit upholding a similar tuition program in Maine that also barred “sectarian” schools from eligibility. The 1st Circuit distinguished tuition programs like Maine’s from the funding programs at issue in Espinoza on the grounds that excluding sectarian education from government funds is a restriction based on the use of the funds, not the status of the applicant, and thus is not status-based discrimination. According to the 2nd Circuit, however, Vermont cannot claim the benefit of this status-use distinction because it has not provided guidelines on how a religious school can safeguard against improper religious funding and obtain TTP eligibility.
“[I]n the more than twenty years since Chittenden Town was decided, Vermont has neither amended the Town Tuition Program nor identified adequate safeguards to ensure that Sending Districts do not use public funds to support worship at religious schools.” Rather, the AOE and certain school districts have apparently applied the Chittenden Town decision by adopting either a blanket ban on funding tuition at all religious schools, or a more limited—but similarly status-based—ban on funding tuition at schools deemed to be “pervasively sectarian” or “pervasively religious.”
Some court watchers have suggested that this apparent difference of opinion between the appeals courts increases the chances that the U.S. Supreme Court will step in and rule on this issue. A petition to review the Maine case, Carson v. Makin, is pending. Stay tuned.