SOUTH BURLINGTON, Vermont (AP) —
Since 2021, religious schools in Vermont have been receiving an increasing amount of money through Vermont’s school tuitioning program. But Act 73, Vermont’s wide-ranging education reform law signed into law in July, effectively halts that trend.
Last week, the state Agency of Education finalized a list of 18 private schools (called independent schools under state law) that remain eligible for the public tuition dollars under the new law’s provisions. Students who were already enrolled in ineligible schools prior to the law’s passing can continue receiving public dollars until they graduate.
Vermont’s public tuition system allows families in districts without a public school for certain grades to use public dollars to send their children to public or private schools elsewhere.
Under the new law, however, private schools located in the state must now pass two tests to remain eligible for public funding: they must be located in a school district or supervisory union that does not operate a public school for some or all grades, and they must have had at least 25% of their student body from the 2023-24 school year funded by a Vermont public school district.
The provisions leave the 12 religious schools that last year received public tuition dollars ineligible for that funding. That includes Rice Memorial High School and Mount St. Joseph Academy, two prominent Catholic high schools based respectively in South Burlington and Rutland that, like others, have received an increasing share of public dollars since 2021.
To be sure, a very small percentage — about 100 students, or less than 4% — of the state’s roughly 3,000 students who used public funds for independent school tuition were going to religious schools. Meanwhile, a little over 2% of the $59,752,073 in education fund dollars that went to private schools in 2023-24 flowed to religious schools.
But the effect that Act 73’s eligibility requirements have on the state’s formerly eligible religious schools marks a departure from a trend seen in recent years that followed significant federal court rulings which bolstered the use of public tuition for religious schools.
In 2021, a federal appeals court judge ruled that three Vermont school districts could not exclude Catholic school students from the state’s tuition system.
Then, in 2022, the U.S. Supreme Court decision in Carson v. Makin held that Maine — which runs a similar tuition funding program to Vermont’s — could not award some parents a “public benefit,” specifically, tuition money, while in other cases “denying the benefit based on a recipient’s religious exercise.”
Since then, the number of religious schools receiving tuition has increased, as well as the amount of public funding flowing to them.
Rice Memorial High School received $644,385 in public tuition dollars for the 2023-24 school year, according to data provided by the Agency of Education, a more than 60% increase from the $386,925 in tuition dollars the school received during the 2022-23 school year.
Other prominent schools now ineligible for public funding include the Mid Vermont Christian School in Hartford, the Rutland Area Christian School and Mount St. Joseph Academy in Rutland. The latter received $395,250 in public tuition funds for the 2023-24 school year — a roughly $70,000 increase from the prior year.
VTDigger used information on schools’ websites to identify religious affiliation since the Agency of Education does not categorize schools as “religious.” Data for the 2024-25 school year was not available.
‘Non-religious criteria’
Now that that funding has been halted, questions remain over whether Vermont’s new independent school eligibility requirements, and their effect on religious schools, could be litigated.
Peter Teachout, a professor of law at Vermont Law School, said in an interview that the criteria around independent school eligibility is on solid footing regarding religious schools, at least based on the precedent set by the U.S. Supreme Court in the Carson v. Makin case.
The criteria that state lawmakers used in determining public tuition eligibility are religiously neutral, he said, and potential plaintiffs seeking legal action would need to prove these criteria were “somehow surrogates for excluding private, religious, independent schools.”
“That would have to be the argument: that in fact, the Legislature was seeking to exclude private, religious schools, and then it came up with non-religious criteria that would achieve that consequence,” he said. “That would be an extremely hard case to make, because the state is absolutely free to decide which independent schools get funding or don’t get funding, provided the criteria are not exclusively based on religion.”
Lawmakers who spoke to VTDigger said that the changes to funding for religious schools were a side effect of the policy changes enacted last session.
“The fact of the matter is what we implemented was really just a generally applicable standard to reflect continuing use of those schools that have served historically as public schools,” said Rep. Peter Conlon, D-Cornwall, the chair of the House Committee on Education who helped craft the final contours of Act 73.
Sen. Seth Bongartz, D-Bennington, the chair of the Senate Committee on Education, said he and others advocated for tuition dollars to continue to go to schools that “were integral to the delivery system” of education in Vermont.
Still, religious school officials said this will have an effect.
David Young, the superintendent of schools for the Diocese of Burlington, said the new eligibility requirements “certainly will hurt.” But he specifically took issue with the July 1 deadline imposed by lawmakers around independent school eligibility.
Young said the process around Act 73 feels “in disarray,” and noted that, while Act 73 immediately set requirements around the state’s tuitioning system, many aspects of the law remain unresolved.
As part of Act 73, Vermont’s School Redistricting Task Force has begun work to consolidate Vermont’s 118 school districts, contained within 51 supervisory districts or supervisory unions, into anywhere from 10 to 25 future districts.
“I just feel like it would have been better to say, ‘Let’s be clear on the procedures in the process. Let’s then set the date,’” he said. “If you’re going to draw these lines that encompass some of the larger districts in with others, you probably ought to understand that first before you upset the apple cart a little bit.”
___
This story was originally published by VTDigger and distributed through a partnership with The Associated Press.
