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Vermont House fails to solve constitutional religious school conflict

Angela Evancie
VPR File
The House bill proposes changes to Vermont's public school choice system, but does not solve the conflict between the U.S. Supreme Court's Carson v. Makin decision and the Vermont Constitution's compelled support clause.

More public education money than ever is going to religious schools that discriminate against LGBTQ students. And that's due to a recent U.S. Supreme Court decision, Carson v. Makin, which says if a state has school choice than they have to give money to private religious schools as well.

Some lawmakers came into Montpelier this year hoping to protect LGBTQ kids while also keeping Vermont's unique school choice system. They proposed changing the school choice system and having districts only give money to a limited number of schools. But a House bill that passed last week did not do that.

Mitch Wertlieb spoke with Vermont Public’s Howard Weiss-Tisman. Their conversation has been edited and condensed for clarity.

Mitch Wertlieb: Let's start with this Supreme Court case. What did the court say last year about school choice and private schools?

Howard Weiss-Tisman: So as you said, it's Carson v. Makin and it came out of Maine, a rural state that has a very similar school choice program to what we have here in Vermont.

Two families there sued the state, saying that they wanted to send their kids to religious schools using the public money. And the District Court and the Court of Appeals both ruled against the families, but then it went to the Supreme Court. And the court ruled 6-3 in support of the families.

More from NPR: Supreme Court rules Maine's tuition assistance program must cover religious schools

Basically, the court said, you know, a state doesn't have to have school choice. But if there is school choice in the state, then they can't exclude religious schools from the tuition system.

So how has that court decision from the U.S. Supreme Court affected school choice here in Vermont?

Families are already taking their public money to religious schools here in Vermont.

And some of these schools, on their websites, and in their admission papers, say they won't admit gay or trans students. So, you know, our public money is now paying for religious schools that discriminate against these kids.

And there's another thing, and that's that there's a compelled support clause in the Vermont Constitution, and that says that Vermonters cannot be forced to support a religion they don't agree with.

The Vermont Legislature has been trying to deal with the fallout from this decision from the U.S. Supreme Court, and the Vermont House passed a bill recently trying to bring more oversight to Vermont school choice system. Did that bill do anything to address that U.S. Supreme Court decision?

You know, it did not really. The House bill does propose a bunch of changes to Vermont's public school choice system, and we'll get to that. But here's what the chairman of the House Education Committee, Peter Conlon from Cornwall, said when a fellow lawmaker asked him on the House floor, if this bill would do anything to address the constitutional issue.

"It does not solve the constitutional sort of conflict between the U.S. Supreme Court Carson v. Makin decision and the state Constitution's compelled support clause," Conlon said.

So that's what Conlon is saying there — that it does not solve this conflict. So what does the bill do? It sets a 25-mile limit on where families can send their kids. And that's to prevent families from using their money in schools in Sweden or California, which does happen now.

"I think a lot of Vermonters don't understand what's going on right now. Also, they don't understand that there's the possibility of taxpayer money going to support religious education. And they don't understand that there's the possibility of taxpayer money going to schools that discriminate against LGBTQ students and teachers and staff also.
Sen. Ruth Hardy, Addison County

And it sets up some rules that make it harder for some schools to not admit students with disabilities. Though there's no real oversight or teeth to that provision, either.

There's mention of Vermont's Public Accommodation Law. But with the U.S. Supreme Court behind them, there's no reason why a religious school would feel like it has to follow that rule. And a lot of people think this is all going to end up in the courts. So the only way really to prevent public money from going to religious schools is by getting rid of school choice.

So there were two bills early in the session that proposed to do that. But the private school lobby, and a lot of families that live in choice districts and really like our system, they pushed back hard on it, and lawmakers kind of backed up a little bit.

I asked Sen. Ruth Hardy from Addison County what she thought of the House bill — she was the lead sponsor of the stronger bill that was introduced earlier this year.

"I think a lot of Vermonters don't understand what's going on right now," Hardy said. "Also, they don't understand that there's the possibility of taxpayer money going to support religious education. And they don't understand that there's the possibility of taxpayer money going to schools that discriminate against LGBTQ students and teachers and staff also. So I think once there's more understanding of that there will be more, you know, Vermonters who say this. This is not okay."

So there's a lot going on here with this fallout from that big U.S. Supreme Court decision. What happens next, Howard?

So Hardy said the House bill will make some small steps toward tightening up school choice, but it just doesn't go far enough. She's looking forward to the debate in the Senate, though it appears unlikely that they'll toughen up the law.

You know, and it's important to point out that the secular private schools, they support LGBTQ rights, and a lot of them have no problem signing an attestation saying they won't discriminate. Secular private schools, they feel like they're caught up in the crossfire.

Have questions, comments or tips? Send us a message or get in touch with reporter Howard Weiss-Tisman @hweisstisman.

Howard Weiss-Tisman is Vermont Public’s southern Vermont reporter, but sometimes the story takes him to other parts of the state.
A graduate of NYU with a Master's Degree in journalism, Mitch has more than 20 years experience in radio news. He got his start as news director at NYU's college station, and moved on to a news director (and part-time DJ position) for commercial radio station WMVY on Martha's Vineyard. But public radio was where Mitch wanted to be and he eventually moved on to Boston where he worked for six years in a number of different capacities at member station a Senior Producer, Editor, and fill-in co-host of the nationally distributed Here and Now. Mitch has been a guest host of the national NPR sports program "Only A Game". He's also worked as an editor and producer for international news coverage with Monitor Radio in Boston.
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