Vermont must stop excluding religious families from school choice
A new federal lawsuit challenges Vermont’s Act 73, which removed religious schools from the tuition list and left families paying for a school choice the state once funded.
Parents, not Vermont lawmakers, should decide which school is right for their child, and the federal courts should strike down Vermont’s latest exclusion of religious families. On Oct. 28, Alliance Defending Freedom, a conservative Christian legal advocacy group based in Scottsdale, Arizona, announced it is suing on behalf of the Bishop family. On Oct. 28, ADF posted: “Vermont banned religious schools from public tuition for decades. A federal court said that violated the First Amendment. The Supreme Court said so again in Carson v. Makin. Now Vermont’s Act 73 does the same thing.”
The program at stake is not a new entitlement. VTDigger reports that Vermont’s tuition system lets families in districts without a public school for certain grades use public dollars to send their children to public or private schools elsewhere1. The state already pays for the choice, and Act 73 decides which choices count.
For the Bishops, the cost is concrete: Mount St. Joseph Academy became ineligible for public tuition funding. Vermont will pay for a family’s choice of school until that choice is Catholic.
Act 73 excludes all 12 religious schools
Act 73 drew eligibility lines that left all 12 religious schools that received public tuition the year before outside the program2. To qualify, an in-state private school must sit in a district or supervisory union without a public school for some grades, and at least 25% of its 2023-24 students must have been funded by a Vermont public district.
The Agency of Education’s finalized list kept 18 private schools eligible, and none of those 12 religious schools made it2. Students already enrolled at ineligible schools could keep public tuition through graduation. Their families get no such relief for the next child: VTDigger reports that at Rice Memorial High School, younger siblings not yet enrolled cannot use public dollars to attend1.
Courts have rejected religious exclusions before
VTDigger reported that in 2021 a federal appeals court ruled that three Vermont school districts could not exclude Catholic students from the state tuition system. The next year, the Supreme Court held in Carson v. Makin that Maine could not deny tuition benefits based on a recipient’s religious exercise2.
Once the courts opened the door, families walked through it. VTDigger reports that the number of religious schools receiving tuition, and the public funding flowing to them, increased after those rulings2. VTDigger reports that the law effectively halted the increase in religious-school tuition funding.
Neutral rules still exclude every religious school
Lawmakers call the standards generally applicable, but the rules leave every religious school that had received tuition funding ineligible. Rep. Peter Conlon, chair of the House Education Committee and a lawmaker who helped shape the law, called it “a generally applicable standard” for schools that historically served as public schools. Sen. Seth Bongartz, chair of the Senate Education Committee, said he supported tuition for schools “integral to the delivery system” of Vermont education. Vermont Law School professor Peter Teachout told VTDigger the criteria are religiously neutral, and that plaintiffs would have to show the Legislature used them as substitutes for excluding religious schools.
Neutral wording did not produce a neutral list. That defense asks parents to ignore a result that leaves every one of those religious schools off. VTDigger reports that about 100 students attended religious schools in 2023-24. That was less than 4% of the roughly 3,000 students using public funds for independent-school tuition2. If about 100 students threatened nothing, why does the rule remove every one of their schools?
Parents should choose their children’s schools
The Bishops are not alone. VTDigger reports that Mid Vermont Christian School in Quechee, with ADF’s support, challenged the new tuition restrictions in federal court, alleging they shut religious schools out of public funding. Two Vermont parents also sued over the law’s restrictions on publicly funded private-school tuition1.
Parents should not have to prove that their religious school fits a legislator’s preferred definition of an education provider. Vermont lawmakers should repeal the exclusion now rather than wait to lose. Parents in every state with a tuition or choice program should watch for eligibility rules drawn to the same effect, because the choice of a child’s school belongs to the family.
Sources
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