John McClaughry
Vermont tax dollars may soon be going to faith-based elementary and secondary schools, if a case filed last week in Federal district court succeeds. The case is styled Valente v. French. The lead plaintiffs are Mt. Holly parents who send their son to the Roman Catholic Mt. St. Joseph Academy in Rutland. French is the Secretary of Education.
The case is the latest product of a decades-long legal debate over a sentence of the First Amendment that reads “Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof.” In a 1947 case the Supreme Court incorporated these protections to bind the states as well.
Montana has long had a “no aid” law prohibiting “direct or indirect” government aid to churches. Five years ago the Montana legislature approved an income tax credit of up to $150 for contributions to a nonprofit organization that provided scholarships to students attending independent schools.
On June 30 the U.S. Supreme Court ruled (5-4, with seven opinions) in Esperanza v. Montana that the State could not allow the tax credits only for scholarships to non-sectarian schools. It must offer the scholarship benefit to students choosing sectarian schools as well. The Court said that not including sectarian schools burdened the plaintiffs’ right to the free exercise of their religion.
“Free exercise” once meant that the government couldn’t prevent you from holding your own religious beliefs, participating in your own religious services, and maintaining your own churches and schools. With the new ruling the Court goes far beyond the paltry tax credit at issue. It now declares that denying any government benefit to churches and schools because they are religious places a discriminatory burden on “free exercise”.
If the Valente plaintiffs prevail – and the language in Esperanza gives them a fairly strong case – parents in tuition towns will be able to have their school districts pay the tuition directly to the religious school, just as it is now paid to nonsectarian schools. Other parents will want the same privilege.
It’s commonplace to exempt all churches, synagogues, schools, colleges, and veterans’ posts from property taxation. But it’s a big leap from that practice to having the government distribute tax dollars directly as benefits to a church or sectarian school.
There are two arguments against this. First, it makes the religious institution constantly eager to win more government support. That will produce an “excessive entanglement” of church and state that the Founders recognized as an invitation to endless discord, turmoil and bloodshed.
Further, collecting tax dollars from citizens and handing them over to sectarian institutions compels the taxpayers to support teachings and practices that they may view as harmful or even deplorable.
Vermont’s Constitution writers dealt with this problem by specifying that “no man can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of his conscience.”
In 1999 the Vermont Supreme Court seized on this “no compelled support” clause to prevent the town of Chittenden from tuitioning 13 students to Mt. St. Joseph Academy. In so doing the Court misread the history and intent of this provision. The “no compelled support” clause does not prevent school districts from giving parents vouchers they can use to pay tuition to approved sectarian schools. It protects individual taxpayers from having their tax dollars spent for that purpose.
A more creative arrangement would be for the school district to give vouchers in various amounts to parents to buy education for their children from providers of their choice, including public schools, sectarian and non-sectarian independent schools, virtual academies, schools run by businesses, unions, colleges, and civic organizations, homeschools, and other yet unimagined types of providers.
The parents direct their vouchers to the providers that offer programs best suited to the needs, interests, abilities and values of their children. Those providers will compete for customers, but this is a far removed from competing politically for government payments.
To meet the “no compelled support” requirement , objecting taxpayers could ask for a rebate of their proportional share of the payments to the disfavored provider. That would reduce the pool of money to cover the vouchers used for tuition at those providers. In practice, however, it’s likely that only a handful of objectors in a district would take the trouble to claim a small rebate.
Admittedly, these transformative changes would never gain the support of those, notably the public school establishment and the teachers union, who are intensely committed to defending the public school near-monopoly. But they would minimize the Establishment Clause’s “excessive entanglement” concern, observe the “no compelled support” requirement , and comply with the (strained) Free Exercise rationale of the Esperanza case.
John McClaughry is vice president of the Ethan Allen Institute (www.ethanallen.org).
VT Watercooler Comment of the Day:
ZUCKERMAN WOULD HAVE ENFORCED MASK BAN SOONER: “Zuckerman sold his soul to Big Pharma. It’s pretty sad.”
Comment on VTWatercooler news by going to www.vtwatercooler.com:
My thoughts exactly. If it was Sarah George he would have already been released and would resume his smuggling business.…
I’ve known that for years.
Imprisonment is more like it.
What a joke this is trying to place the blame on Republicans.. in my county the town of Woodstock loaded…
Okay, thanks. I have the right to have a firearm and I have a right to shoot the rat that…
Recent News
VT Headlines: Slate Ridge owner Daniel Banyai excused from release condition he was accused of violating
Stowe student running for governor is first teen to get on Vermont’s general election ballot; Swanton issues health alert after toxic insulation found at fire site; Structure fire shuts down Main Street in Fairfax
The DHS shutdown is ending, but the damage to Vermont’s airport isn’t
The Senate voted overnight to fund TSA. But nearly 500 officers quit nationally, BTV ran a food pantry to keep its checkpoint open, and the workforce won’t recover quickly.
Feedback Friday at 11:05 AM – Call in 802-244-1777
House Majority says no to tax credit, yes to Wealth Tax vote, and takes $1.7 million in local revenue for property tax reappraisal.
Discover more from Vermont Daily Chronicle
Subscribe to get the latest posts sent to your email.
The referenced June 30th Supreme Court ruling was ESPINOZA ET AL. v. MONTANA DEPARTMENT OF REVENUE ET AL. This article incorrectly identifies that case as Esperanza v. Montana.
And there have been other previous Supreme Court rulings allowing public funds to be used as school choice vouchers to religious schools, most notably the Cleveland, OH Zelman v. Simmons-Harris, 536 U.S. 639 case in 2002.
That public taxpayer dollars should be spent only at public schools is, and has been, the consummate red herring logic that is nothing short of a grotesque infringement on our first amendment rights. School Choice is the most important civil rights issue of our time. The courageous families who are plaintiffs, and the Institute for Justice that is bringing the current case on behalf of the three Vermont families against Vermont Agency of Education and several other Supervisory Union Districts, are to be applauded.
This current case is a must read.
See: https://ij.org/case/vermont-educational-choice/