Vermont education officials have reached an agreement on religious schools. A federal judge in Burlington had concerns.

In a Sept. 22 conference call, U.S. District Court Judge Christina Reiss told attorneys that the proposed settlement would require her to sign a legal opinion she had not written, and that aspects of the agreement were “worrying” and would make her “uncomfortable.” File photo by Glenn Russell/VTDigger

Earlier this month, the Vermont Agency of Education reached a $95,000 settlement agreement to end a two-year-old lawsuit over religious schools.

Since 2020, the agency has been embroiled in litigation with a group of parents and the Catholic Diocese of Burlington, who argued that children in Vermont should be allowed to use public tuition at religious schools.

After a landmark U.S. Supreme Court ruling in June, the two sides agreed to settle. Under this settlementthe Education Agency would pay $95,000 for plaintiffs’ attorney fees and agreed to issue a letter advising school districts that local officials could not use Vermont’s constitution to “deny families the use of tuition fees in religious schools”.

The agency sent this letter to superintendents earlier this month.

But last week, a federal judge in Burlington expressed concern about some of the terms of the settlement.

In a Sept. 22 conference call, U.S. District Court Judge Christina Reiss told attorneys that the proposed settlement would require her to sign a legal opinion she had not written, and that aspects of the agreement were “worrying” and would make her “uncomfortable.”

In certain provisions of the settlement, Reiss said, the parties “request the Court to draw certain conclusions of law which I have not reached” – conclusions, she said, which “I would not reach without making my own analysis.

Reiss’ comments may not change the practical outcome of the case: Vermont’s public money currently pays tuition at religious schools, and has done so since an appeals court order last year. last. And other provisions of the regulations could remain unchanged.

But they provide an unusual footnote to a dispute over one of Vermont’s most contentious education issues.

In Vermont, thousands of children live in small rural towns that do not operate their own public school. Instead, local districts pay tuition for children to attend public or private schools in other parts of the state or country — or, in some cases, overseas.

But for years students were not allowed to use these public funds to attend religious schools. This is because a provision in the state of Vermont Constitutioncalled the “compulsory support clause”, prohibits residents from being forced to support a religion they do not believe in.

In 1999, the Vermont Supreme Court ruled that public tuition money could not go to religious schools “absent adequate safeguards against the use of such funds for religious worship”.

Instead of defining “adequate safeguards,” however, state officials have simply banned the use of religious school tuition.

In September 2020, a group of Vermont parents represented by the Alliance Defending Freedom, a major Christian advocacy organization, sued the state these restrictions, alleging that they constituted discrimination.

In June, the Supreme Court ruled in a case called “Carson v. Makin” that a Maine tuition program – a program that, like Vermont’s, provided public funds for students to attend private schools – could not prohibit the use of these funds in religious schools. .

This decision has been widely interpreted as having a broad impact on Vermont’s educational landscape.

Following this decision, state officials accepted the settlement agreement with the parents. As part of the agreement, state education officials agreed to sign a series of provisions, including one declaring that the Supreme Court’s recent decision “renders Vermont’s requirement for adequate safeguards unconstitutional.”

State education officials would be “continuously directed to enforce the requirement of adequate safeguards to deny payment of tuition to independent schools based on religious status, affiliation, creed, of their exercise or activities,” the agreement reads.

The agency would also be barred from “advising, directing, or providing advice to school districts, accredited independent schools, or the public that the adequate safeguards requirement may be applied to exclude independent schools from tuition benefits.”

But Reiss, the federal judge handling the case, balked at those conditions.

Reiss expected a “judgment with various recitals, the parties agree on this and that,” which she would agree to enforce, she told lawyers during the conference call last week.

But instead, she said, she was asked to sign what were effectively legal opinions she had not come to.

“So I wouldn’t strike down a provision of the Vermont Constitution or hold something unconstitutional unless I decided for myself that I was okay with it,” Reiss said, according to a court transcript of the conversation. “And I don’t believe I’ve ever been asked to adopt anyone’s legal findings in that way.”

The prospect of limiting officials’ advice to school districts made her “uncomfortable,” Reiss said, noting that she hadn’t “done a First Amendment analysis on free speech to know whether I should order a state official what to say and what not to say.”

Paul Schmitt, an Alliance Defending Freedom lawyer representing the parents, told Reiss that the intention of the settlement was to “resolve this legal issue.”

“And really, the only way to do that would be for the Court to do that, knowing that it’s been repeated over and over again over the past two decades,” he said. “And so we were looking for finality.”

But Reiss said that solution seemed “a bit unique”.

“You can accept whatever you want,” Reiss said. “You can ask me to apply it. But I shouldn’t come to conclusions that I haven’t come to myself.

Lawyers for both parties eventually agreed to try to resolve the language of the settlement.

A spokesperson for the Alliance Defending Freedom said the organization could not comment until the settlement was finalized.

Ted Fisher, a spokesman for the Vermont Agency of Education, said the agreement would allow “tuition-paying school districts to move forward with clarity, with the understanding that they must pay tuition at all accredited independent schools, regardless of religious affiliation”.

Payment of the $95,000 is contingent on court approval of this settlement, Fisher said.

But Peter Teachout, a constitutional law professor at Vermont Law and Graduate School, who has criticized the Education Agency’s advice regarding religious schools, called the terms of the settlement “deeply problematic” and said that he was making “radical concessions”.

According to him, school district officials can respect both the mandatory support clause of the Vermont Constitution and the recent Supreme Court decision without conflict – for example by limiting tuition to only public schools or choosing certain private schools to designate as recipients of this money.

“Judge Reiss is right to have reservations about approving a settlement that purports to declare a key provision of the Vermont state constitution to be ‘unconstitutional,'” Teachout said, “of especially since, contrary to the terms of the proposed settlement agreement, this conclusion is not required by the Supreme Court’s decision in the case carson Case.”

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