Vermont lawmakers have not resolved a constitutional question raised by the U.S. Supreme Court’s decision last year on public funding of religious schools.

The Legislature’s inaction raises the possibility that the state could face further legal action on behalf of religious schools and families that send children to them.

“This does not solve the conflict between the Supreme Court and the Vermont Constitution,” state Rep. Peter Conlon, D-Cornwall, chairman of the House Education Committee, said in an interview. He was speaking of H.483, a bill crafted by his committee intended to make Vermont’s private schools more accountable.

The U.S. Supreme Court’s ruling in Carson v. Makin, a case originating in Maine, holds that if a state sends public money to private schools, it cannot exclude religious schools.

In Vermont, around 90 communities pay tuition for some or all grades, rather than operate or designate public schools. Their tuition payments from the state education fund can go to private schools not only in Vermont but anywhere.

Vermont faced a lawsuit almost identical to Carson v. Makin that was settled last year after the Supreme Court decision.

But Article 3 of the Vermont Constitution holds that “no person ought to, or of right can be compelled to, attend any religious worship, or erect or support any place of worship,” putting the state in conflict with the court’s ruling.

The Education Committee wrote H.483 after hearing testimony from private school leaders and students on another bill, H.258, which would have ended the practice of paying tuition to private schools and required tuitioning districts to designate three public schools for their students to attend. The four traditional academies, Thetford Academy, Burr and Burton, St. Johnsbury Academy and Lyndon Institute, private schools that date to the 19th century, would be exempt and eligible for designation. Therapeutic schools, serving special education students, also would be exempt.

Officials at private schools, often called independent schools in Vermont, argued that without public funding, many of them would be forced to close their doors.

According to an accounting from the Vermont Independent Schools Association, around 2,880 Vermont students took public funding to an approved independent school in the state in fiscal year 2022, accounting for less than 4% of the state’s publicly funded students. Another 106 students took Vermont tuition funds to private schools out of state, mostly in New England but as far afield as Washington state, Japan and Sweden, according to legislative testimony from the Vermont School Boards Association.

Vermont spent around $53.3 million on tuition to Vermont private schools in FY 2022, most of it, $37.1 million, at the four traditional academies. Nearly $1.6 million went to private schools out of state. And nearly $3.3 million in Vermont education funding went to out-of-state public schools, most of them just outside the state’s borders.

The prospect of ending payments to private schools, and therefore religious schools, was too wrenching for the Legislature to take up this year, Conlon said.

“I’m not sure how we solve that without a major shock to the system that is also going to require the political will to do it,” Conlon said in a phone interview. There likely wasn’t sufficient support for H.258 in the Legislature this year, Conlon said, and he doubted Republican Gov. Phil Scott would sign such a bill.

“We have a governor who uses the word ‘choice’ very intentionally when he talks about the Vermont education system,” Conlon said.

While school choice tends to be a Republican issue, and Vermont Democrats currently hold a veto-proof legislative majority, those politics mean little.

“Whenever we discuss education policy, it is much more about where you live than about what party you belong to,” Conlon said.

Another issue facing the Legislature was its members’ own inexperience. Conlon is a longtime member of the Education Committee, but several members are new, and last year’s election was marked by a level of turnover not seen in generations.

“I came into the Legislature without expectations,” state Rep. Edye Graning, D-Jericho, who was elected last fall. Although she’s the lead sponsor of H.258, which would end the practice of sending public funding to private schools, she said in a phone interview that she supports H.483. “Incremental change is a good thing,” she said. “… I don’t need perfection. I need us to keep moving.”

Lawmakers have yet to deal with the key issue, she said. “It’s important, I think, for the Legislature to grapple with the inconsistencies between the Vermont Constitution and the Supreme Court,” Graning, who also serves on the Mount Mansfield School District’s board of directors, said. “I would hope we do it sooner, rather than later,” or the state could face further lawsuits.

H.483 would require private schools to enroll special education students; report data such as attendance and assessment results to a tuitioned student’s supervisory union; comply with the Vermont Public Accommodations Act and Vermont Fair Employment Practices Act, two laws that forbid discrimination; and limit restrictive admissions policies for publicly tuitioned students.

The law would effectively prohibit sending public tuition funds to religious schools that discriminate on the basis of sexual orientation. But even independent schools that don’t discriminate on that basis oppose the measure.

In debate before the House Education Committee, Rep. Scott Beck, R-St. Johnsbury, said independent schools need to maintain admissions practices that allow them to interview students before accepting them, unlike public schools, where students enroll and then school officials and teachers assess their needs.

“Well, I think if everything happens post-enrollment, then you’re talking about a true open-enrollment system, and that is not something that the independent schools that I’ve worked with are willing to operate under,” Beck, a longtime teacher and coach at St. Johnsbury Academy, told Conlon’s committee last month. “They want to know some things about kids before they say ‘Yes.’ ”

The bill passed House Education by a vote of 7-4, with one member absent. The vote broke on party and geographic lines, with state Rep. Nelson Brownell, a Democrat from Bennington County, where public tuitioning is the norm, joining the committee’s three Republicans in voting against the measure.

As of Friday, H.483 was still up for debate in the Senate Education Committee. Opposition from private schools makes the bill’s passage uncertain.

Eric Rhomberg, head of the Compass School, a grades 7-12 school in Westminster, Vt., said in recent testimony that H.483 “could crush small independent schools like mine.” Such schools shouldn’t be required to enroll publicly tuitioned students “without first reviewing their needs, interests or characteristics.” About 40% of Compass students are publicly tuitioned.

Even if the law does win Senate approval and Scott’s signature, it likely would lead to a new lawsuit. Maine took a similar approach, restricting the payment of public tuition to schools that don’t discriminate. A Christian school has filed suit against state officials claiming a 2021 change to the state’s Human Rights Act is a “poison pill” meant to exclude religious schools from receiving tuition students.

“While we are unaware of any current or planned litigation, we do think there is a high likelihood that a lawsuit will ensue,” either like the suit in Maine or from citizens who don’t want their tax money to support religious schooling, Sue Ceglowski, executive director of the Vermont School Boards Association, said in an email.

She referred to the Maine case and noted that its outcome could affect Vermont.

Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.

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