 Good afternoon, everyone. It is Friday, February 19th. Welcome to Senate Education. Sometimes I feel like saying I'm your host, but this is Senate education where we are going to be returning to a couple of topics but quick housekeeping, two weeks to crossover so that means we have next week to vote out bills. Then we'll have our crossover break, and then we'll come back and we'll have another week. We can if there's something you don't get out. We can always ask for a rules extension from the rules committee, work with the corner office center balance team. But at this point I'm anticipating that we should be okay. But we'll see so we are going to start by returning to the topic, the broad topic of church and state. Mr. Demeray has a new draft for us, and we're going to hear from ledge council and bore Yang many of you know bore through her work with the Human Rights Commission. So, senators asked the very good question around funding, where are some of the funds going to be coming from when people are talking to their constituents and others and just for broad knowledge. And last joint fiscal to come in, Catherine Benham, and, and Steve Klein will talk to us a little bit about, you know funds dollar amounts, where possible funding may come from, you know, as we give our recommendations to appropriations. So with that I did share with the pro tem and the care of appropriations last evening, a draft of our letter, and just generally letting them know the direction that we are heading in. One of the things is Benham and others have reminded me of is that there will be multiple trains leaving the station, going forward as it relates to appropriations we know that there are. There will be a repeat as we've talked about budget adjustment, and then this expedited bill, we have the big bill, and also the possibility of other funds, and I know that Ms. Benham and Mr Klein will give us additional information on that. I'll talk a little bit about Vermont's education professional standards, the senators may recall one of the things we've been interested in is streamlining standards for teachers with the help with the hope that we might increase our, our pool of applicants etc. So that's one of the tools possibly in our toolkit. And then we'll wrap up the day with Secretary French. Appreciate him coming in to talk with us again about our letter. There are still a few holes. And see if we can, if you can help address some of those outstanding questions that we have so with that not seeing any hands up. We will go to Mr. DeMarais. Okay. Good afternoon. Good afternoon. For the record, Jim DeMarais, let's console. We are talking today about the ability of a school district to use public funds to pay tuition to a school and pet school with a religious mission. And before I go into the bill language, which I will share on the screen shortly, I just wanted to frame the issue for a moment. And the issue we have is not an issue that concerns our Constitution or statutes. The issue we have concerns practice on the ground, what school districts are doing today, and how they're approaching this question. The Vermont Constitution requires that a generally available available benefit like tuition that goes to independent schools cannot be denied to a school based on its religious stats. The Vermont Constitution holds the same. You can discriminate based on religious stats. The Vermont Constitution requires that before you disrepays public funds to a school with a religious mission before that happens. There has to be safeguards to ensure that money is not being used for worship or religious instruction or propagation of religion. The US Constitution and the Vermont Constitution are consistent on this question. Our statutes on tuition are consistent with our Constitution. And the problem that we're having, the school districts have been denying payment to these schools that have a religious mission based on their stats. So when asked by the school, or the parents of a student, can you pay tuition to Rice Memorial High School? Districts have been saying no, because you're with the school, no. And that's the problem. So we need what this bill proposes to do is to give districts direction as to how to respond to that question correctly. And the correct response is to require, according to Professor T-Shop, who you heard from last week, is to require school districts to receive a certification from those schools, not just those schools from all approved independent schools, that says that the funds will not be used for the purpose of religious instruction worship or propagation. So by doing that, you have a uniform approach throughout the hundreds of school districts that we have in the state and it clarifies the position. A number of court cases are happening right now because of this issue. And this bill is designed to make a statement by the literature as to what the right direction is to avoid these problems going forward. Is that clear any questions about that before I proceed? Yes, Senator Chinden, please. Thank you, Jim. That was very helpful. I received a call from a good friend of mine that was concerned about our discussions on this topic. And the core of their concern, I think you just addressed, is that this could be used to prevent what monies are currently allowed and going to some schools with religious missions. But your understanding of what we're doing here is to clean up the language and anything allowing school districts to enable the sending of public monies to schools with religious missions, assuming they certify. So by no means could this bill be interpreted based on what we understand so far as prohibiting or preventing current monies that are going to some schools with some public monies going to schools with religious missions, that is not going to be affected by the intent of this bill. Is that a fair statement? I would say yes. I would qualify that by saying that my understanding today is that money is not going to these schools to lose its mission because of confusion at school district level asked what the rules are. Now, whether or not the schools can certify that they won't use it for this purpose is a separate question, right? If they can certify this, then they would be available for these funds. That feels that's good. Okay, great. Any other questions? A Senator Hooker. Yes, Jim, could you just talk about the lawsuits and they're being brought on the basis of being denied the tuition. Sure. So you have lawsuits happening in the courts. You also have appeals going to the State Board of Education, because in some cases school districts have the authority to allow operating districts have the authority to send their children to another school. So you have two things going on court cases and State Board of Education cases going on. And the theme of these cases is that the courts are basing their decisions on the record before them. Okay. And the record before them is, in some cases, statements made by school districts to parents that they are unable to use tuition funds because of the status of the school. So the courts look at that and they say it's based upon discrimination based on staffs and that's unconstitutional. Okay. Also what's happening is on dual enrollment, which this bill now addresses too, but I don't propose to go through that today, necessarily, unless we have time. On dual enrollment, same thing is happening, districts are saying, you can't have dual enrollment to a student who goes to Rice Memorial High School, because your religious school. Okay. That's not the correct statement to make, because actually, if the school was on public tuition, they could do dual enrollment. And the only reason they're not on public tuition is the schools are denying them, based on the religious status. So I'll come back to the same question. Is that helpful, Senator. It is, it is, and I know that we've talked about this before, but the idea that money sent to a school for dual enrollment, even though it's going to, and perhaps a college that is not really certainly not religiously oriented, but that that could kind of be used in the place of money that's being spent for courses provided at the school. So that was, you know, just a, I guess, so right now, the money can go, but schools are saying it can't because school districts are denying the status of the school. Yeah, correct. So we have Mr. Demerick, please correct me if I'm wrong, we have, I mean, if we were to do nothing, which is always an option, we would have school districts, we would wait for lawsuits to be settled. And play out, I mean, it's, but the Constitution itself in the, in both courts have said that these kinds of things have to happen, we just need to put the guidelines around them. Yeah, that is correct. And the, if you did nothing, then today, recently in last month, the agency of education gave guidance to school districts on this topic, but that guidance is non binding. The AOE doesn't feel it's in a position to instruct on this. It's really a school district decision. So there is something out there that could be helpful. But not coming from you and what's after an hour is not binding. And what's happening to right now is, at least in one of the cases, you have a federal appeals court saying that you have to allow for tuition basically, because you have discrimination based on stats, but there are no safeguards to protect that money against religious use, uses for religious destruction. So we have a federal court saying he has to probably use constitution, which could buy the Vermont Constitution because without the safeguards, you can't do that. So you have basically some districts are in the crosshair right now of two competing competing things. And without the guidance here. Maybe they'll find their way through, but this is designed to give them clear guidance as to how to get through that. Let's just take a quick trip back to the 1700s gym and we'll let you lead this trip. Any idea, any thoughts on, you know, in your study of the law in the Constitution, what the founders were thinking about this kind of thing. I can't answer that question. There's been so much development of these principles over the last 200 years. And 20 years ago, 30 years ago, their point that Senator Hooker was making about diversion funds, we've been very well with conversation. Today, the court doesn't worry about diversion funds in this context. So things have changed a lot. We've got cases have just come up in the last year, big cases. That's been when Damien will talk about that or just changing the whole landscape that we're working in. Senator Chinden. This is really helpful, Jim. So can it be said that this bill is to design to prevent school districts from discriminating against schools because of their religious mission. Yes. I love that. Thank you. Yeah, yes. Yeah. Before I go to the bill is one more framing issue, which is, you've talked before about having certification requirement, it's been the bill language. What's new about this bill language is also now requires approved in Penn schools, regardless of their religious staff so approved in Penn schools for Burton. So moral high school, regardless of their mission, would have to comply with the same anti-discrimination laws that apply to public schools in order to get the grant funds and the public tuition. That's new in this bill. And that's why you have the witnesses you have today to talk about that aspect of it. I've also added into this bill language about dual enrollment, but I won't cover that at the outset because I think you want to hear more about the discrimination issues and we can cover that when we have time maybe there or next week. If that's okay. So with that G if I could share my screen. A popular document. Right here. Okay, yeah. Okay. Can people see this document? Good. Okay. Okay. Um, so the bill now proposed to do three things. One, to ensure compliance of the US environmental constitutions by clarifying that a school district is authorized to pay public tuition to a qualified school or program. So those words are kind of defined terms to statue, but what we're talking about here are independent schools for this conversation. Okay. Regardless of it's religious sass or affiliation. If the school or program has adequate safeguards to ensure that none of the tuition for which payment is requested has been or will be used to support with this instruction or workshop. So that's the kind of propagation of religious views. Second, to prohibit a school district from paying public tuition to a qualified school program. Again, regardless of sass, unless the school or program complies with all federal and state anti-discrimination laws applicable to public schools. Second, verify under what circumstances a school district should make a school environment available to students who attend a school with a religious mission. Okay, so we've gone through this before, but let's go through it quickly again. So first findings. So first finding is that the Vermont Constitution has a compelled support clause, which provides that no person can be compelled to support any place of worship, contrary to the dictates of conscious that applies to taxpayers. So taxpayers can be compelled to their tax payments to support any place of worship. Second in town versus Department of Education from 1999, the Vermont Supreme Court held that a school district may pay. Public tuition to the school with a religious mission under the compelled support clause. If the school has adequate safeguards against the use of such funds for religious worship or instruction or the propagation of religious views. The purpose of section two below is to define adequate safeguards that a school district must employ to ensure that I found this on the web for Define Aqua Safeguard. Sorry, my iPhone's going off. Sorry. The purpose of section two is to ensure that safeguards are put in place by school districts. So section two is amending existing statute. It's section 828. And that's the section that deals with tuition paid to approve schools. And unchanged section, subsection a says a school district shall not pay the tuition of a student except to a public school and approved independent school, which is what we're focusing on. We're going to approve the school being education quality standards. It's a sort of program for the education program, or independent school in the state. So all that's being covered here under our language really focused on this approved and school part. So you can pay to improve the school. So in the B is new language, it says a school district shall not pay tuition under a subscription a of this section to any of the school programs identified in that subsection, regardless of a few of religious status or affiliation, unless they receive certification from that school program under a subscription D of this section. So section two provided that public schools that receive tuition from a school district or exempt. Then this language here that is designed to say, and we can focus on this language, maybe a future date, but it's designed to say that schools are permitted to give basically overview courses in religion. So let's say you can't teach religion at all. And that's what this language here is is trying to express. The main topic for today though is here, which is, is that see a school district shall not pay tuition into a section A of this section to any of the school schools or programs identified in that subsection. The best to school program complies with all federal and state anti discrimination laws applicable for the school public schools. And then lastly, indeed, it says in order for a school or program identified in that subsection to receive public tuition from a school district. It shall certify to the school district that none of the tuition for which payment is requested has been or will be used to support religious instruction or worship or the propagation of religious views. And the school or program complies with all federal and state anti discrimination laws applicable to public schools. This certification requirement shall not apply to public schools. So I'm going to stop sharing from it. And it's what I say that the topic for the witnesses coming next I believe is around the extent to which is permissible to require these independent schools to comply with all anti discrimination laws. What I will say is this provision is not outstanding they have to comply. It's a condition to receive public tuition. So it's not unconditional requirement is a condition to receive public funding. And that's the framework that we're talking about this in. So that was going to be it for my part of this but I'm happy to take questions. Yeah, so if I may. So if, if I had a child who was going to go to the St Andrews Episcopal School down the road or something under this if this were to pass as is that St Andrews would have to comply with anti discrimination policies put forward by the state and federal government. Brian junior could enroll in introduction to religious studies down there. But does that mean Brian junior cannot or they would not allow him to take a class specific on teaching the New Testament or something like that. Yeah, this is not designed to interfere with schools, schools mission. Okay, so, so it comes to comes to that your question goes to the point of how does the independent school make the certification. Yeah. Okay. And the certification itself is one that that astrafted has to be trusted because there's nothing more to it than providing certification. Ways in which schools may approach that I don't know, but for example, schools have capital funds for obviously improving their buildings and so these and operations they have food budgets. They have things are non that don't go to religious mission that schools just do. So they could say it funds for that purpose with using this public tuition money for those purposes. They could say, look, 60% of our day is basically a secular thing. 40% is not. So we're going to accept 60% of the tuition tuition and not 40% of the different ways they could do it. And this doesn't tell them how to do it because you heard from Professor teach out last week. I guess very messy when you try to go in there and figure that out. So it goes, it's a question for the schools to decide how to comply with this certification requirement. Other questions before we move on to. Yes, please send your lines. This is such a complex area, but is there jurisprudence on. I mean obviously we have the chitin and decision but then there's significant, there are significantly more court cases relating to this and I think of things like the prayer before the start of school or before a sports event. And those things. So, you know suppose a child from a secular school can only play a sport if he or she is at the at rice. And the, the rule of thumb is that there's always a prayer or blessing. The game begins, could a, could that be considered a violation if some of the money is being used for the sports team. That's a good question not an expert, frankly, in this area. So I mean, it's probably not an answerable question, but it, you know, I think it's probably the responsibility of schools to. When they certify that all of their staff are well informed about the meeting. Yeah, they have to have some system in place I think to spend these funds in a way that does not contradict the certification. Thank you. I mean because I can I, you know, despite how young I am, I do remember when under God was put into the Pledge of Allegiance and the, and the big fuss that was made about that by some of the agnostic people in the country. It's hard to believe. Yes it is Senator. Absolutely. I don't know how much chair you want to spend on this how much time you want to spend on this but to Senator Lyons point just I think this is important for us as a committee to understand what we're talking about if this goes to the floor so we can defend it. In that example, I would understand as long as the prayer is an anti discriminatory and even if by some chance somebody did say something inflammatory or discriminatory. As long as the school didn't condone it and the school didn't like require that same prayer every game and they instead in fact addressed it then it would be resolvable and simultaneously as long as they didn't require every student to conform to a prayer or to to share the prayer. Then it would still probably meet that certification process is that a fair way to stretch out her example. Well, I would just say, I mean the whole topic of prayer, or, or places, or various things like that, that deal with losing schools is a very broad topic, right. We're talking today. We're talking on our topic about use of public funds, going to these types of schools, and what they would need to do to comply. And again, there are lots of things you can go into probably as to these questions, but the bill doesn't do that. The bill is simply looking for a certification and leaving us questions really over there, if you will. Senator Hooker. Did you have your, you're all set. Okay. Okay. Thank you, Jim, and I think we'll now move on to Mr Leonard. Good afternoon. Good afternoon. How are you. I don't know. Okay, that's right. Right. Thanks for being with us. Appreciate it. You will remind us just take us to the section again that you are have some expertise in and give us your thoughts that would be most appreciated. Sure. So, what I've been working with Jim on on this is the requirement that the schools comply with the anti discrimination federal and state anti discrimination laws. So what makes that sort of a uniquely complicated issue in this case is a series of cases that culminated most recently with the 2019 2020 Supreme Court session in a case called Morris E. So versus our Lady of Guadalupe school, I, I reverse them in the title but the, what that case was was it was a case. It was two cases that were consolidated at the Supreme Court where Catholic elementary school fifth grade teachers had sued their schools. One case for age discrimination and in the other case for disability discrimination when their contracts weren't renewed the. So what, what was that issue in that case was whether what's called the ministerial exception applied to those individuals and what the ministerial exception is is. The idea that religious institution including a religious school should be able to choose and if necessary remove a minister without government interference. In other words, the, the state, or the government shouldn't be permitted to force a religious institution to keep a minister or preacher or rabbi who is teaching something contradictory to the dictates of the faith. And the state shouldn't be interfering in their decision about whether to continue employing someone in a minute ministerial role. This, this doctrine or this exception has gradually expanded over time. The sort of first landmark case and this was about someone whose title actually included the word minister so they were actually named as a minister in this case, neither of the teachers titles indicated that they were a minister they were both just fifth grade teachers. Neither of them had had formal religious training. And neither of them was held in an especially elevated role within the hierarchy of the religious institution they were both just regular teachers. So, from that standpoint, the plaintiffs in that case argued that they shouldn't be subject to that ministerial exception. But what the court basically focused on is, do they play a religious leadership role. And so they're, they're looking at what do they do. And very importantly, Justice Alito, who wrote the majority opinion that in that case focused on this sort of functional test. And he identified various things that they did during the day, including leading the students in prayer, taking them to mass, helping them prepare for various religious events at the school. And then in some cases teaching the school's religion class, all as being ministerial roles. And thus, even though those individuals didn't, didn't have the formal title of minister, they weren't Catholic priests or nuns or anything like that. They were just regular teachers and their contracts didn't even require them to be Catholic. He, he basically ruled that their role as teachers within that institution made them key to sort of the, the, the religious purpose of the school. And therefore found that because they, they had that role and because they performed some of these religious activities. They were subject to this ministerial exception, which meant, and this is the key point here that the court could not consider the anti or the discrimination claims that they'd filed. So in other words, the schools were exempt from federal discrimination laws under, in this case, the Age Discrimination and Employment Act, and the Americans with Disabilities Act, but they've also applied this to the the other civil rights anti employment discrimination provisions. And so essentially what you've got here with this bill is you're requiring compliance with state and federal discrimination law. And I'm not aware of an instance where this has been applied in us to a state law, but under the supremacy clause of the Constitution. And that the US Constitution would, would win out if you had a state law that was unconstitutional. And so we cannot necessarily enforce an anti discrimination law with respect to teachers at a religious institution. You might be able to with respect to someone like a custodian, or someone who prepares and serves meals, someone who performs a purely administrative role. You might be able to apply the anti discrimination laws to them. But the, the courts would, at least in my reading here, I think it's likely that the courts would, if you had a teacher or other person in some sort of educational role, filing a discrimination claim that they could potentially have their, their case dismissed under this ministerial exception. So it, it is a sort of complicated place where our protection of discrimination meets the First Amendment protections against the state interfering in the establishment of religion. And I know you have boring with you today. And she may have some other thoughts on this. But this to me kind of presents a little bit of a conundrum with this bill. Because I'm, I'm, you're, you're asking for a self certification, but are you also compelling them to do something that they're not required to do under the Constitution, or are you simply saying, as provided by, you know, the existing case law, you have to comply with the anti discrimination provisions so. And another thing that's just worth pointing out is, there is no rigid test that the courts apply on this. It's sort of a four factor test where they weigh the different factors I mentioned the title, the training, the role within the religious institution and then their actual functional role. And so you could find on different facts with a different school that Episcopalian school down the road from you, Mr chair, that in that case the individual wasn't fulfilling a religious role and the anti discrimination laws do apply. So this could be very fact specific depending on an individual's role and what purposes they fulfill during their day. I see there's a question from Senator Lyons already. Good. Please Senator Lyons. Not, not just one 1000. I do have two questions. I'll ask the broader question if, if the state of Vermont had a an integrated equal rights amendment that protected people regardless of disability if we throw put disability and or ethnic and racial background. If we had that would that provide for the discrimination protection that we're seeking in this bill anti discrimination protection. Again, I think what you're running into here is, you're going to deal with an issue where the court or the judicial body. What considers this is going to have to balance the institutions. First amendment rights versus the right to be free from discrimination of the individual. And so, I'm not sure that I can give you a clear answer one way or the other, but I think any court that considers this is going to be considering the sort of competing constitutional and legal factors here. Another thing to just note is that a state constitution. If you have a state constitution that directly contradicts a right that's provided under the federal constitution. I think there's a very strong argument that the federal right wins out. So you can't deprive someone of their rights under the US Constitution through state action, but it would, it would definitely be an interesting case. So the other but my other question I think you've answered that by by giving a certification that they are not violating the they aren't using the money for religious purposes is the is would be considered that the school is effectively waiving its rights. So, if you're certifying that you're not using it that means that you're adhering to what the law is requiring and therefore you would be saying, I waive my rights in this instance as long as I'm adhering to the requirements of the statute. I'm not sure that I would read an implied waiver into the certification that you're not using the money for religious purposes. So I don't have a lot of background in education law, for example, but in the area where I am more familiar and labor law. Before it was struck down at the US Supreme Court for many years when agency fees were legal in the country. There was a test that was set out where you had to be able to show that you weren't using the money collected. So an agency fee is a compelled fee paid to the union by non members for the representative services. And you had to show that the union wasn't using it for speech activities because that would have violated the individual's right to free speech. So for example if I was in the bargaining unit but I was anti union I just happened to be represented by one. I didn't have to pay for their political action, but I did have to pay for their services now that's been struck down so it's a side but I think when you're doing that certification. And I wasn't here for your other testimony what you may see is, you know, so our religious instruction is funded by the diocese of the local diocese. And our math and science and English curriculum and our foreign languages curriculum, that's funded by tuition. So that that could be a way that you could meet at least from my standpoint not knowing the education law very well that could be a way that you could meet that standard, potentially. Are you comfortable with that? No, I'm not. I'm not comfortable, but I got I get it. I understand. Thank you. Thank you, Senator Hooker. Just a question about the draft that we're on because I don't seem to have the one that's up on the screen. I don't know if there was there another draft that was sent Jim. Yeah, I should be posted. I don't know if there's a follow on it. I think it's the same thing. I don't see the, well, I don't know, maybe I'm not looking at 3.1. It's just 3.2. Yeah, this I have 3.1. Yeah, on our, on our site. And I did want to ask, just a second, Jeannie, would you mind putting 3.2 up. I'm looking, see if I have it. Thank you. Senator Hooker. And then you were talking about the four things that, you know, would put a person under like ministerial exception. Are they, you know, all four of them, two of the four, whatever, and then you talked about teachers who weren't even religious, you know, had no religious affiliation. You know, a math teacher who doesn't do the prayer doesn't take the kids to mass doesn't do any of that is that person would that person be protected under the anti discrimination. So in that case, I think that there is an argument, a strong argument that they are, but it hasn't to my knowledge been addressed in the courts yet for maybe able to give you more insight onto this. Certainly has a greater amount of expertise and anti discrimination law than I do. But in this case, I think it was important to this case that the teachers here prayed with their students attended mass with them and prepared them for participation and other religious activities at the school. In this case, they did have some religious function and one of the teachers taught the religion class that was required for her fifth graders from the textbook although she, you know, she argued in court that she was just basically providing them the and the exercises in the textbook she wasn't actually providing them the kind of instruction that, you know, like a youth minister or a priest or or rabbi might provide. But the court rejected that argument and said no you're performing religious activities that are at the core of the school's religious mission. So that for your covered the dissenting justices in the case justices so to my or and the late justice Ginsburg. In their dissent. They kind of raised the question well where is the line is a coach who leads the football or the track team in a prayer before the competition. Are they a minister. And, you know, what about, and they laid out a series of sort of what ifs where does the, where does this religious function and, or are we just going to. Is it is it up to the institution to say, say where where that function ends because. And so, I think that's an open question at this point. But I think that there's a strong argument if you have a teacher who teaches nothing but you know the calculus and algebra curriculum. And that's all they do, then, potentially they are not covered by this ministerial exception in the same way that a custodial staff member who provides no religious instruction, but just happens to work in a building a religious institution has a strong argument that they are not covered by the ministerial exception because they're not performing a ministerial role. Thank you. Mr Leonard say something would you about students in religious institutions and in other words, a students that may want to, you know, attend a dance together students who might be transitioning. Say something if you would about, because again, what we would like what we're trying to do with this is to protect those students. I think I would defer to bore there. Because it's it's outside of employment law and my, my very limited experience comes from attending a Catholic university. So I don't know the law here. So, I would defer to her. You had your hand up. Yeah, if I could just say that it's not the case in this bill language that we will be proposing to apply the anti discrimination laws directly to these schools. You know, saying infant schools, you have to comply with all and is only. They will only be applied as a condition of taking public money. So it's like, I don't remember that way because I'm hearing everything that Damien is saying. But I'm wondering if that all stands true. If the requirement is a condition of a privilege is the condition of getting public funds, as opposed to a strict requirement just to comply. Yeah, and that that's outside of my area of expertise. I might defer to David Hall on on that one. I mean, it's worth noting the are anti discrimination laws at least ostensibly with a couple of minor exceptions or not minor, but a couple of limited exceptions. I was the wrong choice of words there, but a couple of limited exceptions do apply to all employers in the state. A couple of limited exceptions do apply to all employers in the state. The key piece here is that the federal courts the US Supreme Court has established this ministerial exception. Under the First Amendment. And so that's kind of the the interesting area there for religious institution and there. There have been a number of cases, which I just can't pretend to know all the ins and outs of regarding when a religious institution has to provide certain types of health protections, etc. This is probably an area where or can give you a little bit better sense of some of the ins and outs and David may be able to talk about. You know, whether you can condition the receipt of public funds on something like this. I mean, at least on the surface the school needs to abide by the anti discrimination laws. The catches they don't need to do it for someone who is a minister. Right now, as is, you have spent the school, you're a student that school has to abide by the state's anti discrimination, which protect members of the LGBTQ community. But as it relates to the ministerial role, it isn't protecting a faculty member. Yeah, although the first part by itself is it protecting the students. Again, I can't answer the question on the students. I can answer for employees. Okay. And just with respect to state law, we do have an express exemption in our state law. So discrimination on the basis of sexual orientation and gender identity shall not be construed to prohibit or prevent an organization operated for charitable educational purposes, and that is operated supervised or controlled by or in connection to this organization from giving preference to persons of the same religion or denomination, or from taking any action with respect to employment matters that is calculated by the organization to promote the religious principles for which it is established or maintained. In other words, there, there is a limitation on our, our protections against employment discrimination on the basis of sexual orientation and gender identity already in statute with respect to religious organizations. If the decision not to, for example, hire someone of a certain sexual orientation or gender identity is calculated to promote the religious principles of the organization. And this is another thing worth noting here before we even get to that. And again, with respect to the students, I really need to defer to borrow. I'm going to stop there, but I'd like you to stay on Mr Leonard. Yang, would you mind joining us it sounds like you might have some able to direct us. Good afternoon, welcome to Senate Education. We have hopefully heard some of this conversation. You know a little bit about what we're trying to do here. We have some answers from Mr Leonard but he's mentioned your name a few times is possibly being able to help us navigate this. So any assistance you can give would be greatly appreciated. Thank you so much for inviting me here today, just for the record working the executive director of the Vermont Human Rights Commission and I have been able to listen and I think both him and Damien have done an excellent, excellent job and I think the reality here is that this is a really tough area with competing interests and competing rights and as Damien has mentioned the US Constitution trumps every time. All the cases are interpreting the US Constitution. And so when there are competing rights that if you have the US Constitution on your side, most of the time you're going to, you're just, you're going to prevail. I do want to mention that both the Vermont Fair Employment Practices Act and the Vermont Fair Housing and Public Accommodations laws, which is our anti discrimination laws and housing and places of public accommodations, all set forth exemptions around sexual orientation and gender identity. Those of public accommodations include schools, any school, we haven't said that that's only schools that receive public funds, or, or non religious schools, that's any school really, but that we have set forth an exemption for religious institutions to discriminate. As it relates to same sex marriage or same sex relationships, and I'm trying to look for the exact language so I can read it to you here in a second but the realities we haven't had a lot of cases that interpret that. It is possible that a school that receives money could use that exemption to discriminate against kids who are LGBTQ. That is, that is the, the reality when you set, when you have an exemption such as that. So I wanted to point out some important cases some some of this is redundant because Damon mentioned it too but the US Supreme Court case of Hosanna to bore evangelical Lutheran Church was the involved a teacher who filed a disability discrimination claim, and who was retaliated against and that was the case where the US Supreme Court said, Well if you are a minister and you have that title, then we have no authority to judge and to decide whether this particular institution has engaged in discrimination. So basically saying we wash your hands we have no right to, to make a decision here. And what follows is the case that Damien mentioned our lady of Guadalupe school, where the court then completely broadens the definition of who is a minister. There's someone who doesn't even have to be Catholic maybe doesn't even receive the religious training, who certainly don't have the title as ministers, but play some important religious role are now captured within that exception. And so I would love to think that maybe a custodian or a math teacher would not fall within that exception, but I don't feel really confident that that would necessarily be the case when they work at a religious institution. So, so we're not sure. Another case that I think it's important to highlight is the St. Johns Barry Academy case versus DH. So, oh, before I do that I want to just mention that the teachers in these cases were discriminated against on the basis of disability. The teacher had was aging so it was an age discrimination case. And in another case the teacher had breast cancer, and then was terminated. So I'm not aware of any religious tenants that would permit that kind of discrimination but nevertheless, we're not talking about sexual orientation or gender identity discrimination here. So religious institutions, really discriminating against teachers based on disability or age, or otherwise. Okay, so the St. Johns Barry Academy case is an important second circuit court case, and involves a student who has cerebral palsy and other disabilities, and St. Johns Barry Academy was the really the school that they had chosen to go to. A particular student was on an IEP plan which is covered under the IDA laws that said that they had to be integrated into mainstream classrooms. But St. Johns Barry Academy had a rule that says you can only join the mainstream classrooms if you're functioning at like the fifth grade level. And this particular student because of their disabilities and their IEP plan was not could not meet that requirement and then they were so they were excluded from the mainstream classroom. And that case went all the way to the second circuit. And what the Academy argued in that case was that the law doesn't apply to them, the IDA doesn't apply to independent schools. And they won. So the second circuit court decision was that the IDA laws do not apply to independent schools, and it entirely ignored the fact that private institutions like St. Johns Barry probably get the majority of their funds from public funds. There's a lot of independent schools in Vermont that are primarily funded through federal, through public dollars. And so, I mean, one could argue and I think that the student did argue that it essentially was operating like a public school but nevertheless the second circuit court read that it wasn't. That student also raised violations of the section 504 of the rehabilitation act. And again there the second circuit court said that that schools have the right to set certain qualifications. This kid didn't meet the qualifications. And so they weren't going to review the 504 claims either and so the student lost. And I think that's important because the question ultimately is, what is certification mean. What, what value is it is it just a pro forma promise. If there's no jurisdiction to review a school for firing their teachers or there's no jurisdiction to review a school for not permitting certain activities are not admitting certain students. If there's no jurisdiction over that are they essentially in compliance, and therefore they can certify that they are in compliance, or they not in compliance. And I think I think that that is sort of a really difficult position, I certainly would support this language because I think it's important that all of our kids have real choice, regardless of their disabilities, regardless of their sexual orientation or gender identity to be able to choose which schools they go to if they live in a place where there is that choice. But I don't feel particularly hopeful because of the case law. I do. The secondary question I have is more practical, which is, who really enforces the certification. I think Jim mentioned that about a promise from the schools that they're complying with the anti discrimination laws. But what does it mean when they make that promise but they actually aren't in compliance. How do we determine who is in compliance and who's not. What happens when they've already received public dollars and then they come, they're not in compliance. And what are we looking to in terms of determining compliance. I'll just give you one example. HUD requires that entities that receive federal dollars for housing, do not violate any anti discrimination laws. They do require a similar kind of certification from those entities, but they also reach out to agencies like the Human Rights Commission to see if we've made a determination that those entities have violated the anti discrimination laws, in deciding whether or not to renew those grants and those funding for the next session. I'm afraid I've thrown out more questions out there, but there's more than probably answered them. But the reality of the fact is that the case law is not particularly helpful for all kids in Vermont and I'm not sure I know how to reconcile that. Well, our only question to you is, what should we do. So it sounds like you would suggest that we move along. I think your point's a good one. How do you certify these? So you put out these certifications, who's going to check on them? But as Mr. Demarra has said all along, this is a bit of the honest policy, you know, make sure we're committed to doing the right thing here. We're going to certify and students are going to come here and not receive, you know, religious instruction with tax dollars. But to your good point, I mean, the practical piece of that is how do you follow up on that? How do you check on it? I mean, if we were to put the anti-discrimination language in, you know, it sounds also like, you know, this ends up in a court, a court's going to immediately decide against us. I don't think it's going to be clear one way or the other. I certainly think I would move forward if I were you. That's just me. Because I do think that the purpose and intent of this language is to be inclusive and protective. And I always say, let's go bold, Vermont, and the courts can determine this and interpret it later. And courts are always changing too, by the way. We had a different kind of makeup on the US Supreme Court. The decisions might have gone differently. Nevertheless, this is where we're at. And so my feeling is you put this sort of certification requirement out there. There's a good chance that schools will voluntarily just comply with the anti-discrimination laws. And so even if there was no enforcement piece to it, it's a good thing. I would suggest that you add some type of enforcement. I'm just thinking about what happened, do they pay back those public funds if they later discovered to have discriminated? What happens to all the kids in the interim if there is a determination that a school has violated the anti-discrimination laws? Again, here the ministerial exception still potentially leaves a lot of employees who could be covered. Whether I feel hopeful about that or not, doesn't matter. I mean, there's still the legal argument that it could cover several employees. I also think that we're talking a lot about religious institutions, but we have a lot of non-religious independent schools here too who would fall under this and there's value in that, absolutely. Question. Senator Lyons, please. Actually, more, thank you. You answered most of my questions regarding certification and whether we should include anything more in the bill. And it sounds like you, from your perspective, that if we remain silent on anti-discrimination, it's implied in the bill that folks are following in the heading or in the findings that folks might be following anti-discrimination procedures in their schools. And so I think I agree with you on this one. I think it's really important that we go forward. But my question, I do have a question and the question I asked earlier from your knowledge and work. If there is a certification, doesn't the certification mean that the school is willing to adhere to all the requirements of federal and of state law? I'm going to leave federal out for now because we've got the Supreme Court hanging over us, but can we say something about the fact that the certification does mean that they will adhere to the same requirements that publicly funded institutions are adhering to or some similar type of language? I think that the way I'm reading the current draft is that that is what you mean by it. I think the question for me, not really me, because I would interpret it that way. I think the question for some schools, particularly religious schools is, does that mean, because there's no jurisdiction to determine whether or not they are in compliance, does that mean that they essentially are? If you have no court that can decide whether you're in compliance or not because you have a First Amendment right, are you actually then in compliance or does that mean you're not? And I think that is the odd piece here. But again, there's a lot of independent schools in Vermont that get public funds and that are not religious. And they would fall under that except where it comes down to the special education cases. Because we have that second circuit court case that has decided that the IDEA laws do not apply to independent schools in that way, that it's still the public entity's job to make sure that kids who are in special education are still receiving all of those services that they're required to. But yeah, I mean, I think that's that's a hard question because what does it mean to be in compliance with the anti-discrimination laws? And then what does it what does it mean in terms of the funding if, as you said, that maybe they lose their funding? I mean, could the state withhold funding as a result of a lack of certification going forward? That's a really great question. And I read professor teachouts testimony a little bit about that. I just want to say, I'm not clear that removing funding because a religious institution has a First Amendment right to discriminate is not a violation of the First Amendment. And so I think that's a really, that's a tough space. That's where the those recent cases that were discussed comes in is like, can you then say, well, if you're going to take public rights, you have to then not discriminate and religious institutions say we have the right to discriminate. That's our First Amendment right. And so you can't read, if we have a First Amendment right, you can't then remove funding from us, because then you're discriminating against us based on religion. And so, so religious, so the religious organization has the right to discriminate against very vulnerable populations based on something in their structure and belief. Anyway, we will go there. I don't even think it has to do remember these cases were about disability, and these cases were about breast cancer and age. So, we're not even talking about religious institutions that were that could rely on some kind of tenant that says it's against our, our philosophy and our religious tenants. It's age and disability, and they have the First Amendment right to sort of do that. The key piece in those cases was that they have a First Amendment right to choose their ministers. So, which I think, you know, that is the question that again really comes down to who is a minister, and the most recent case was, was a significant sort of expansion from what had previously been covered in court cases. But it, it also, you know, it's basically saying if you're a religious school, and you have someone who provides some form of religious activity, then they are very likely covered by that ministerial exception there and that allows the, the religious institution to choose, choose whether to keep them on as a minister or not because they have the right to choose their own ministers the state. What the court is saying is the state can interfere in that right. And of course, the youth Supreme Court didn't set out the factors. They they're just interpreting it case by case and so that's why when Damien said that it's possible that a custodian could still not be a minister and I said I don't know who knows. I think it's possible that a custodian whose job is primarily secular in nature is present for prayers, and then is considered to play an important role in that game. I just wanted to say I have to leave for my next hearing so. Thank you, thank you appreciate this. Other questions for Miss Yang. Yeah. Thanks Miss Yang. I do answer most of my questions with your responses, the underlying questions, but, and I think we should keep the language in and kind of see what the courts do. But I thought it was interesting your point about, if we add something about how we determine if schools are in compliance. I mean, I guess it would be if they're found in violation of one of the discrimination laws, then they would be not in compliance. And if that's sufficient, or if you feel like we should. And if you're willing to suggest language that we should add about that, how we determine if they're in compliance or not. Yeah, I think the question is who is make who would be making that determination. As to whether someone is in compliance with discrimination obviously at the local level they would be looking to see if the certification is it is is accurate but do you want an agency like the Human Rights Commission whose job is to make kind of that decision, but we aren't And we're not, we don't offer an administrative hearing, or are people not in compliance only once a court in Vermont or a federal court has determined that they have violated the anti discrimination laws. So I mentioned earlier that HUD would look to just us. We're not looking for a court determination that someone has violated the anti discrimination laws, HUD relies on agencies like the Human Rights Commission to make kind of that preliminary decision. The value of using an entity like the Human Rights Commission to determine whether discrimination has occurred is that it captures a lot more cases because many cases come through the HRC that doesn't actually get litigated. So that might be valuable. And because so many people are without resource financial resources the chances that they are going to file a case in court is less likely. And so I certainly think that that could be helpful. I can tell you that if we had a case involving a religious institution firing a teacher that, although actually I should say that that case would most likely go to the civil rights unit at the Attorney General's office because we overseas state government employees, and there's a good chance that that's the kind of case that they would receive. If I were to see something like that, I probably wouldn't even accept it for an investigation because the US Supreme Court has already determined that there's no recourse in such a case. But if I were to pass that kind of example, I certainly think that using entities like HUD, EEOC, or the Human Rights Commission to determine compliance is important because you're going to capture a lot more cases. If it pleases the chair, would you be willing to give us some language on that, or examples from what that does or something like that. A little bit. That research, yeah. That would be great. Thank you for suggesting a center personally and thanks for accepting the offer. I wonder also if you and perhaps been working with our Ledge Council might have some language around. And then what does this PCS and then what's the enforcement piece look like. In other words, what happens when. What is that, you know, what then. That's there. So remember that this is in the context of only providing public funds. So this is an outright requirement to comply with these laws. So the consequence of non-compliance, our guests would be to have made the school refund payback the public funds they received during the period that they were our compliance. Because there's no, it's not like a criminal or civil action. Yeah, no, I think that's a good point. And maybe that's, that's then what we should just have drafted up and put in there. Yeah, I think that's because I do. Sorry, go ahead. No, please. I don't mean to interrupt you. No, please interrupt. Not interrupting you're helping us problem that you might run into is you have a school. And in schools in Vermont, who are primarily funded almost 90% by public funds. And if you find that they cannot certify what are you shutting down that school. Are you removing all public funds, or only the public funds as relates to that particular student who was discriminated against. And it would take the, you can't receive public funds unless you make the certification. So to your point, they'd be losing all their public funding if they can't certify. So then they're going to go bankrupt. And there's, which maybe we don't care about except all of those kids that live there don't have another school to necessarily go to. And the way I read it now is that it says you have to certify. But as far as the discrimination just says that you're in compliance with all federal and state discrimination laws, which is maybe a distinction that has no meaning but that's the way it's worded now will you certify one thing and then you're just in compliance with the discrimination laws. So I figured that's why some language on how to figure out if they're in compliance or not as important. I think if if compliance isn't connect to truly connected to certification, the certification is meaningless. Right. Well the certification is about the religious instruction, not about the discrimination. Oh, no it is right am I am I reading the right draft certification is connected. Yeah, it's both. It's both. Yeah. No this is very helpful in credit. I appreciate the dialogue. So if we could leave it for at least today that you will work with Mr. Demeray to to get us some different language, some new language, and then we'll look at that language. Next week. I do think, unless there's an objection from the committee I would be surprised if when we do pass something out I do think it makes sense for Senate judiciary to see it. And for them also to have an opportunity for new senators you know one of the things that can be very helpful when you get something that can be complicated to have another committee see it. And also if they're endorsing it, you, you know you've got, you know, close to those 15 votes if you will. First of all, it gives people comfort that you know another committee of jurisdiction. In this case, the judiciary has seen it, but then you add, you know, perhaps if we get, you know if we were to get our six we get this five, you know we're getting close to that 15 or 16 by the time we get to the floor so you know there's there's some strategy there and as well as some some comfort around another group of eyes so. Thank you both for talking to us about this. I think right now Mr. Hall will hold off on you but we will likely have you back because this is not the end of this conversation. In the committee, if you don't mind a 10 minute break and then we will return to, so that'll be 10 minutes to read, and then we'll return to our conversation with drink this or start our conversation between fiscal. Thank you all. Good luck.