Sun. Jun 20th, 2021

MONTPELIER — A spate of national and state-level court rulings have been clear: States, including Vermont, cannot discriminate against religious entities when doling out public subsidies, including taxpayer-funded school vouchers.

But can those schools then discriminate against their own students?

That question rose to the surface recently when former Vermont education secretary Rebecca Holcombe tweeted out a screenshot taken from the handbook of Grace Christian School, a religious institution located in Bennington. The small K-12 school’s “Statement of Faith” compares homosexuality to incest and bestiality, and states that “rejection of one’s biological sex is a rejection of the image of God within that person.”

“All faculty, staff, parents, volunteers and students must uphold and promote the morals and lifestyle dictated in this Statement,” it continued.

Grace Christian also receives public dollars through the state’s child care subsidy program. “#vtpoli, just how much compelled support of state-funded discrimination is OK?” asked Holcombe, a longtime critic of the state’s voucher systems.

Luciana DiRuocco, a spokesperson for the Department for Children and Families, would not say whether religious schools receiving child care subsidies are subject to anti-discrimination laws, but she suggested Grace Christian is now under investigation.

“DCF became aware of a potential licensing violation at one of its child care facilities last week,” she wrote in an email.

Shawn Smith, administrator for the school, declined a phone interview. But in a written statement, he said Grace Christian “reserves the right, in its sole discretion, to refuse admission of an applicant or to discontinue enrollment of a student if the atmosphere or conduct within the home or the activities of the student are counter to or in opposition to the biblical lifestyle the school teaches.”

“We love and serve everyone,” he added in a subsequent email.

Recent court rulings spell trouble for the state’s church-and-state protections. But they also leave school districts and the state operating, for now, in an evolving and murky legal landscape. Left unsettled: whether, and how, public entities can put guardrails around the money they send to religious entities.

In Espinoza v. Montana Department of Revenue, the U.S. Supreme Court ruled that states could not deny funds to religious entities based solely on their status as religious institutions. But the justices left open the possibility that states might still regulate the use of that money.

Earlier this year, a federal appeals court judge issued an emergency order stating that three Vermont school districts could not exclude Catholic school students from the state’s voucher system. The judge has yet to issue a written opinion. The State Board of Education recently ordered several districts to reimburse families for tuition paid to religious schools, though it took care to craft its order as narrowly as possible.

In January, the Vermont Agency of Education tried its hand at suggesting safeguards, recommending that schools seeking tuition reimbursements simply self-certify that the money will not fund religious instruction directly. It later quietly, and without explanation, rescinded its “Best Practices” document.

Asked if Grace Christian School might be allowed to receive taxpayer-funded vouchers through the state’s town tuitioning program, Ted Fisher, a spokesperson for the Agency of Education, responded that they “could be eligible,” but that school districts would need to make their own determinations. Schools, including private schools, are subject to the state’s public accommodation law, Fisher said, although he said it’s not up to the agency to enforce it.

“This is not an area of law we have jurisdiction over,” Fisher wrote in an email. “The Vermont Human Rights Commission is charged with enforcement of this statute and may be able to better speak to how the law applies to schools.”

Bor Yang, executive director of the state’s Human Rights Commission, said Vermont’s Public Accommodations Act does indeed cover all schools and should prohibit even religiously affiliated ones from excluding students who belong to a protected class. But the commission’s role is still limited.

Whether the state or a school district can deny public funds to entities that discriminate as a matter of policy, she said, is “beyond my jurisdiction.” And the Human Rights Commission is ultimately reactive, not proactive, she said. To offer assistance, for example, someone must be expelled from a school, and they must seek help from the commission. The state agency cannot investigate an institution of its own accord and demand that it adopt inclusive practices.

“A family who has a child who identifies as LGBTQ is not going to naturally send their kid to a religious school who openly discriminates. And so there isn’t even the basic facts that would permit a denial to be reviewed” by the Human Rights Commission, she said.

There are also notable religious exemptions to anti-discrimination laws. Last summer, the Supreme Court held in Our Lady of Guadalupe School v. Morrissey-Berru that elementary school teachers could be considered “ministers” and were therefore barred from suing for employment discrimination.

Still, Peter Teachout, a constitutional law professor at Vermont Law School, thinks that the state can — and should — condition public funding on adherence to those laws.

“There’s nothing in that Guadalupe case that says the state has to provide financial support to religious institutions and schools that are unwilling to comply with those laws,” he said.

And, absent clear policy or direction from the state or the Legislature, Teachout thinks school boards, which administer vouchers at the local level, will be unsure what to do.

“I think it’d be irresponsible for school boards to make decisions in which taxpayers in this state are being forced to subsidize violations of state discrimination law and policy,” he said.

Earlier this session, the Senate Education Committee had explored requiring schools that receive public dollars to certify that they would abide by anti-discrimination laws. But the legislation was set aside, in part, because lawmakers believed the Agency of Education’s best practices document remained in effect, said Sen. Brian Campion, D-Bennington, the committee’s chair.

“It sounded as though the rules would protect students, federal dollars and state dollars,” he said. “But if that’s not the case, then we do need to return to it.”