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Supreme Court Ruling May Affect Public Funding for Vermont's Religious Schools


Published June 21, 2022 at 7:55 p.m.

Rice Memorial High School, a Catholic school in South Burlington - FILE: OLIVER PARINI ©️ SEVEN DAYS
  • File: Oliver Parini ©️ Seven Days
  • Rice Memorial High School, a Catholic school in South Burlington
The U.S. Supreme Court ruled on Tuesday that Maine could not exclude religious schools from its school tuitioning program. The 6-3 decision will likely have implications for Vermont, the only other state in the country that allows families in towns without a public school to use tax dollars to send their children to a  public or private school of their choice.

At the heart of the Supreme Court case, Carson v. Makin, was the question of whether state govern­ments that subsid­ize private educa­tion should be required to fund reli­gious instruc­tion. The case was brought by two Maine families who live in rural areas with no public high school. They argued the state was obligated to pay for their children to attend Christian high schools as part of its tuitioning program. Maine law, meanwhile, states that public dollars can be used to pay tuition to private schools only if those schools are secular.

But the Supreme Court ruling states that Maine's exclusion of religious schools is unconstitutional. The majority opinion — written by Chief Justice John Roberts and signed by Justices Samuel Alito, Amy Coney Barrett, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas — said Maine's current tuitioning system amounts to "discrimination against religion."

"In order to provide an education to children who live in certain parts of its far-flung State, Maine has decided not to operate schools of its own, but instead to offer tuition assistance that parents may direct to the public or private schools of their choice," the majority decision reads. "Maine’s administration of that benefit is subject to the free exercise principles governing any such public benefit program — including the prohibition on denying the benefit based on a recipient’s religious exercise."

Justices Sonia Sotomayor and Steven Breyer both authored dissenting opinions.

"This Court continues to dismantle the wall of separation between church and state that the Framers fought to build," Sotamayor wrote in her dissent.

"From a practical perspective, today’s decision directs the State of Maine (and, by extension, its taxpaying citizens) to subsidize institutions that undisputedly engage in religious instruction," Sotamayor continued. "In addition, while purporting to protect against discrimination of one kind, the Court requires Maine to fund what many of its citizens believe to be discrimination of other kinds."

In his dissent, Breyer noted that Bangor Christian School and Temple Academy, the two schools at play in the Supreme Court case, "have admissions policies that allow them to deny enrollment to students based on gender, gender-identity, sexual orientation, and religion, and both schools require their teachers to be Born Again Christians." 

More than 20 years ago, the Vermont Supreme Court attempted to curtail public money from funding religious instruction. In the 1999 case, Chittenden Town School District v. Vermont Department of Education, the court ruled that public tuition money could not be paid to a religious school “in the absence of adequate safeguards against the use of such funds for religious worship.” But the court did not define what "adequate safeguards" means, and that decision has been tested in recent years.

In April 2021, the Vermont State Board of Education ordered three Vermont school districts to reimburse families for tuition they paid to send their children to religious schools. And in June of the same year, a federal appeals court ruled that four Vermont school districts with no public high school were required to reimburse families for tuition paid to Rice Memorial High School, a Catholic school in South Burlington.

Those decision followed the 2020 Supreme Court ruling in Espinoza v. Montana Department of Revenue, which said that a state program that gave tax credits to donors who sponsored scholarships for private school tuition had to also be open to scholarships for religious schools.

During Vermont's most recent legislative session, lawmakers considered a bill, S.219, that would have prohibited religious schools from using taxpayer dollars to support religious instruction, but ultimately tabled it — in part because they wanted to see the outcome of the Carson v. Makin case first.

In April, ACLU of Vermont staff attorney Harrison Stark testified to lawmakers that passing a bill before the Maine Supreme Court case  was decided "not only risks possible judicial invalidation ... but could also jeopardize this body's future ability to craft a comprehensive — and constitutionally sound — solution."

On Tuesday, former Vermont secretary of education Rebecca Holcombe, who is running to represent the Upper Valley in the Vermont House of Representatives, blasted the Supreme Court's decision on Twitter.

"This decision has profound implications for #vted and for Vermont’s constitutional protections," Holcombe wrote in a Twitter thread. "For people who care about freedom of conscience and the democratic purpose of public schools, this decision, like #SCOTUS decisions on abortion, is a monumental loss."

The Vermont State Board of Education recently crafted new rules requiring publicly funded independent schools, including religious ones, to accept students receiving special education services. Oliver Olsen, chair of Vermont's State Board of Education, said he was unable to comment on Tuesday's ruling due to pending litigation.

Read the Supreme Court decision here:

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