You know you’re onto a hot mess when, in the course of a one-hour hearing, a situation is described as “a potential landmine of constitutional issues” and a passage between Scylla and Charybdis, and a leading Constitutional scholar can’t even guess where the courts are going on the issue.
Such was the state of affairs before the Senate Education Committee Wednesday afternoon. The five solons took testimony on how, or whether, the state must pay tuition to religious schools. The short answer is “yes,” under certain circumstances. The long answer is, “yes,” but exactly how we should do it is an impenetrable thicket of non-ambiguous court decisions and costly legal maneuvers.
And if you don’t, under any circumstances, want your tax dollars going to, say, The Lord’s Anti-Semitic Academy Of Creationist Heteronormativity, well, you’re shit out of luck.
The “credit” for this morass can be awarded to the John Roberts Supreme Court. In a 5-4 decision (along ideological lines) in the 2019 case Espinoza v. Montana Department of Revenue, the high court ruled that the state of Montana could not exclude religious schools from a program that doled out tax credit-funded scholarships for schoolkids.
Vermont doesn’t have a program like that, but if a community chooses not to operate public schools, the state pays tuition for the town’s kids to attend one of a handful of approved private schools, like St. Johnsbury Academy and Burr and Burton Academy. If you apply the Espinoza standard to Vermont, the state must throw the program’s doors open to any qualified private school, religious or not. And “approved” can’t be decided on the increasingly frayed principle of church/state separation.
“The Supreme Court has been moving the goalpost in favor of funding religious institutions,” said Vermont Law School Professor Peter Teachout, the Legislature’s go-to guy for thorny constitutional issues.
After the jump: Fasten your seat belts, it’s gonna be a bumpy ride.
This issue came to a boil in Vermont last month. On January 7, a federal judge ruled for the plaintiff in A.H. v. French, a suit brought by parents who wanted to send their child to a Catholic high school on the state’s dime. Two weeks later, another judge issued an emergency injunction ordering the state to quickly implement a revised alternative system that accommodated all qualifying private schools.
Which brought us to Wednesday’s hearing. The Department of Education had already prepared a “best practices guide” on how to meet the ruling’s requirements. Teachout essentially endorsed that guide, but cautioned that the state was navigating a treacherous Scylla and Charybdis passage between Espinoza and the Vermont constitution’s “compelled support clause,” which forbids any state support for religion.
The patchwork fix: Pay tuition to approved religious schools, but bar any state money from funding religious instruction, worship or promulgation. “It’s a pretty simple ‘Vermont’ solution, but I think it works at least as a stopgap,” Teachout said.
It seems to me that there’s another way out of this. What if we simply ended the approved-school program? Instead of sending kids without local schools to private academies, what if we devised a way to accommodate them within the public K-12 system? That would resolve the Espinoza requirement that any such program must be open to all private schools, because there wouldn’t be a program.
But as much as I’d rather deal with that problem than start paying tax dollars to The Lord’s Creationist Academy, there’s a reason why the idea never came up Wednesday. It’s because the approved independent schools are sacred cows in Montpelier. They spend big bucks on lobbyists, and get their money’s worth. Cutting them out is a political non-starter. Which is a shame because I can tell you, as someone who’s lived in other states, that there’s nothing etched in stone about our current system. And if it’s going to cause endless challenges from deep-pocketed conservative legal teams, then I’d rather do without it.
Maybe it’s not that simple. I don’t know, I’m not a lawyer. But in the absence of a bold move like that, the state will be left to devise a system that will allow religious schools to take public dollars as long as they only pay for non-religious educational activities.
And there’s the rub. How do you draw the line? You can say that the state can’t pay for daily church services or directly teach kids that Jesus came to save the world. But if you’ve got, say, creationism being taught in science classes, or history texts asserting that the U.S. Constitution was divinely inspired, or kids in health classes being told that Gay is Not Okay, what in blazes do you do?
Teachout cautioned that it would be pretty much impossible to write regulations that would logically delineate between religious and non-religious activity — and that any such regulations would, you guessed it, trigger even more lawsuits.
I can’t say I like Teachout’s solution. “My approach is to leave it up to the schools to say ‘We won’t use public funds for religious purposes,'” he said. “Leave it to the individual school to certify. That requires a certain amount of trust.”
Yeah. And so does letting a fox guard the henhouse.
and I haven’t even mentioned the fact that this new system will almost inevitably siphon more money out of the public schools. If parents have more options, they’re more likely to shift their kids to private schools.
In the short run, the DOE’s “best practices guide” will suffice. But the department and/or the Legislature will have to devise something more permanent. Or, at least, permanent until the next successful lawsuit. The Espinoza ruling was narrowly tailored to that specific case.
“Reading through Chief Justice Roberts’ decision, he said we don’t have to decide today what’s allowed and what’s not,” Teachout said. So there’s lots of room for more legal challenges, and there are a lot of well-funded conservative legal entities like Citizens United or, in A.H.v. French, the Alliance for Defending Freedom, to file as many lawsuits as their teams can handle. ADF, by the way, is a national nonprofit with ties to the Koch brothers empire. It successfully represented the Colorado bakery that didn’t want to bake a cake for a same-sex couple, and argued against marriage equality in two seminal cases, Lawrence v. Texas and Obergefell v. Hodges.
Oh, and the Southern Poverty Law Center includes ADF on its list of hate groups.
So that’s the opposition: A lavishly-funded team of legal attack dogs who are doing their best to tear down the church/state wall. And if you think the Espinoza decision was bad, well, that was before Ruth Bader Ginsberg died and Amy Coney Barrett replaced her.
Committee chair Brian Campion ended the hearing on a lonely note of levity. “You are now eligible for one credit of constitutional law,” he said.
There was uneasy laughter. These folks know they’ve got an impossible task in front of them.