By Lindsey Wood | Staff Editor

April 2, 2024

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Vermont and Maine are the only states to offer school choice programs that supplement their public school system.[1] These programs allow districts that do not operate their own public school to send their students to approved schools in other districts.[2] In Maine, any school receiving tuition assistance payments must be “a nonsectarian school.”[3] A sectarian school is one that is associated with a particular faith, and that “promotes the faith or belief system with which it is associated and/or presents the material taught through the lens of this faith.”[4] In Carson v. Makin, the Supreme Court struck down the Maine program as unconstitutional because it excluded religious schools.[5]

In Carson, the Court upending constitutional doctrine and mandated that taxpayers subsidize religious education. Despite the long history of antiestablishment in the United States, the Court held that a state’s desire to comply with the Establishment Clause is not a valid basis for a Free Exercise violation.[6] The Court also discarded the previously recognized status-use distinction. Under this doctrine, it was impermissible for a state to discriminate based on the religious status of a person or church.[7] However, a state was allowed to limit the uses of public funds. [8]

The Maine program excluded schools that were engaged in religious instruction.[9] Therefore, the Court should have applied the status-use distinction to uphold the program. The majority flatly rejected this argument.[10] In its cursory treatment, the majority explained that although prior cases forbade discrimination on the basis of religious status, they “never suggested that use-based discrimination is any less offensive to the Free Exercise Clause.”[11] With no further legal analysis, the Court put an end to states using use-based restrictions to prevent public tuition funds from going to religious schools. Therefore, any state with a school choice program can no longer exclude a religious school because of its religious nature or instruction.

This decision had major implications for Vermont’s school choice program. The prohibition on state funding for private religious schools comes from the Compelled Support Clause of Article 3 of the Vermont Constitution.[12] However, under Carson, Vermont can no longer use its constitution to avoid including religious schools in its school choice program. To ensure that public money is not used to fund discrimination, Vermont has imposed further approval requirements on independent schools. Independent schools must affirmatively agree to not discriminate on the basis of religion, sexual orientation, or gender identity as a condition of receiving public tuition funds.[13]

Mid Vermont Christian School has filed a federal lawsuit against the state after being denied approval based on its refusal to sign the statement of nondiscrimination.[14] The school alleges religious hostility and challenges the Vermont approval requirements as neither neutral nor generally applicable.[15] Vermont has a fair chance of winning this lawsuit, as it has not shown outright hostility to religious groups receiving public funding. In the absence of religious hostility, it is possible that Vermont can demonstrate to the Court that the antidiscrimination requirements are rooted in the Equal Protection Clause rather than the Establishment Clause.[16] Although it is difficult to predict how this lawsuit will be resolved, this demonstrates the difficulty of entangling religious schools with state funding. Thus the importance of the now defunct status-use distinction.

To comply with both Carson and the Compelled Support Clause of the Vermont Constitution, a seemingly simple solution for Vermont is to eliminate its school choice program. Ending payments to all private schools regardless of religious status would mean that no tax revenue is going to religious organizations, while maintaining the neutrality required by the First Amendment.[17] As suggested by the Court in Carson, expanding the public school system would eliminate the need for a school choice system.[18]

However, adding public schools in any state, but especially in Vermont, is a costly endeavor. During the 2018 to 2019 school year, 3,407 students attended approved independent schools.[19] It is highly unlikely that all those students can be incorporated into the existing public schools, so new public schools must be built. However, this is not a simple endeavor. The State of Vermont is currently facing a whopping $6.3 billion dollars in construction costs just to maintain the state’s 384 school buildings.[20] Building a new school costs even more: Burlington’s new high school is projected to cost $210 million.[21] Although this may have seemed like a simple solution to the majority in Carson, the high price tag makes it untenable for states that rely so heavily on school choice.

Finally, the Court in Carson suggested a hybrid education system that allowed for “some combination of tutoring, remote learning, and partial attendance . . . .”[22] This would potentially fill the gap created by eliminating school choice. The Court failed to describe exactly how this would equate to in-person attendance—perhaps because the Court recognized the absurdity of such a proposal. Although some families may homeschool their children or use remote learning programs, that is a far cry from imposing this option on families who live too far away from a physical school. If Vermont offered this as an alternative to in-person education, rural families may be forced to accept this alternative rather than being able to opt into in-person education.[23] This would likely violate the requirement of “providing every school-age child in Vermont an equal educational opportunity.”[24] Therefore, until Vermont is better positioned to expand its public school system, eliminating school choice would pose new problems regarding equal access to education.

The majority in Carson got it wrong. The Court mandated that taxpayers subsidize religious education in an opinion inconsistent with decades of precedent. Nothing in the Constitution requires this decision. The shortsightedness of this decision is unmistakable. Why should we dismantle the wall of separation that has served us so well for so long? The Court has no answer to this question. Rather, it continues its destruction of the Establishment Clause with reckless abandon.

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[1] Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.

[2] Id.

[3] Me. Rev. Stat. Ann., Tit. 20–A, § 2951(2).

[4] Carson v. Makin, 979 F.3d 21, 38 (1st Cir. 2020).

[5] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 18 (U.S., June 21, 2022).

[6] Carson, slip op. at 10–11. For an example of an antiestablishment law, see “A Bill Establishing A Provision for Teachers of the Christian Religion” in Virginia. The bill sought to tax citizens to support “Christian teachers,” but was rejected after a public outcry. See Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 853 (1995) (Thomas, J., concurring) (explaining that purpose of the bill was to support “clergy in the performance of their function of teaching religion”). As a result, the “Virginia Bill for Religious Liberty was enacted instead, which guaranteed “that no man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever.” A Bill for Establishing Religious Freedom, reprinted in 2 Papers of Thomas Jefferson 546 (J. Boyd ed. 1950).

[7] Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (striking down a playground resurfacing program because it excluded a church based solely on its religious status).

[8] See, e.g., Locke v. Davey, 540 U.S. 712, 721 (2004) (upholding the program at issue because Davey was denied a scholarship because of how he planned to use it, not because he was religious); Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246, 2256 (2020) (emphasizing that discrimination based on religious status is distinct from discrimination based on religious use).

[9] Carson v. Makin, 979 F.3d 21, 30 (1st Cir. 2020).

The Department’s focus is on what the school teaches through its curriculum and related activities, and how the material is presented. . . . whether a school is ‘nonsectarian’ depends on the sectarian nature of the educational instruction that the school will use the tuition assistance payments to provide. . . . [s]ectarian schools are denied funds not because of who they are but because of what they would do with the money – use it to further the religious purposes of inculcation and proselytization.

Id.

[10] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 16 (U.S., June 21, 2022).

[11] Id.

[12] Vt. Const. ch. I, art. 3 (“[N]o person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience . . . .).

[13] 22 000 004 Vt. Code R. § 2226.6(1).

[14] Mid Vermont Christian School v. Bouchey, No. 2:23-cv-00652-kjd (D. Vt.).

[15] Id.

[16] See, e.g., Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) (holding that Equal Protection Clause requires an “exceedingly persuasive justification” for gender-based distinctions in educational admissions.”).

[17] See Employment Div., Dept. of Human Resources of Oregon v. Smith, 494 U.S. 872, 878 (1990) (A government policy is not neutral if it is “specifically directed at . . . religious practice”); Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, 508 U.S. 520, 546 (1993) (holding that failure to meet either the neutrality or general applicability test is sufficient to trigger strict scrutiny).

[18] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 14–15 (U.S., June 21, 2022).

[19] Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.

[20] Ethan Weinstein, House Panel Confronts ‘Eye Popping’ Cost of School Construction Needs, vtdigger (Jan. 3, 2024) https://vtdigger.org/2024/01/03/house-panel-confronts-eye-popping-cost-of-school-construction-needs/.

[21] Katherine Huntley, Cost of Building New Burlington High School Going Up, WCAX (Sept. 5, 2023) https://www.wcax.com/2023/09/05/cost-building-new-burlington-high-school-going-up/.

[22] Carson ex rel. O.C. v. Makin, No. 20-1088, slip op. 14–15 (U.S., June 21, 2022).

[23] As of July 2020, 45 of the State’s 110 school districts did not operate either an elementary or a secondary school. Douglas R. Hoffer, Report of the Vermont State Auditor: K-12 Schools, Vermont State Auditor (Mar. 30, 2021) https://auditor.vermont.gov/sites/auditor/files/documents/FinalIndSchoolReport.pdf.

[24] Brigham v. State, 692 A.2d 384, 386 (1997) (per curiam) (holding that “the state must ensure substantial equality of educational opportunity throughout Vermont.”).