 There we go. Okay welcome back to Senate Education. Jim, I'm wondering if you would please bring us back to the topic when we were talking with Professor Teachout and yourself around some of the issues we're dealing with around church and state. I know you have put together some options for us to consider around what we might do to protect that line if you will. And so I'm wondering if you could just give us an overview of your thinking and why this direction you think might make the most sense and then a little walkthrough of the bill. And we're not going to be making any big decisions today but it will just help focus us I think. Sure, yeah. Thank you. So for the record, Jim, everyone, let's console. I think this area because it involves a constitutional principle which has been interpreted many times by the court is frankly quite confusing to understand. So before we go through options and language, let me just help define if I could the problem you're trying to solve here. And the problem you're trying to solve here is that the Vermont Constitution has this clause called the Republican support clause which essentially says that citizens of Vermont cannot be compelled to support any religion. So the way that's been interpreted by the Vermont Supreme Court in a case back in the 1990s called Chittenden Town, the court said yes, you can provide tuition, public tuition, to religious schools but you have to be sure, you have to take some safeguards to ensure those funds are not being used for religious instruction. So you have that guidance from the Vermont Supreme Court over 20 years ago and the problem that we have is that districts have been denying use of public tuition for religious schools like Rice High School. They've been denying it because they are religious schools. So they haven't been applying a safeguard against their use. They've been saying as a blanket statement, we can't fund you because you're religious school. So the Supreme Court has held you cannot discriminate against a religious school solely based on its stats. So the recent cases that have been coming up in Vermont, we've seen, there have been some holdings that basically have held that Vermont is discriminating against these schools based on their stats because that's what the record has shown in the court record. It shows denial by districts on that basis. What has it happened in the 20 or so years since Chittenden Town was decided, there's been no state directive going to school districts as to how they can establish safeguards against improper use. The districts have been on their own to figure that out or just to deny funding based upon stats, which is unconstitutional. So that's the problem. The problem we have is we're in a situation now, we've got court cases that are in live flow here, which are coming against state because we really haven't defined what their safeguards look like. So what the AOE did in February of this year is they issued for the first time non-binding guidance to school districts after what their safeguards might look like. The AOE says as guidance that has no authority to bind school districts because it's what a district issue, an AOE issue. So it's given some guidance and then Professor T-Shelt came in and testified as to a process for certification from him, which is part of the guidance that the AOE gave as well. But I think what an option for you is to give direction from direction. The school district is saying that you shall provide funding to these religious schools if they provide the district for the certification. The funding is not being used for the purposes of religious destruction, worship, or propagation. So what I have here for you today is a bill that gives that direction to school districts and with that direction it's now saying to school districts on a uniform basis, here's how you do it. And therefore it will allow school districts to fund religious schools if they get certification using those funds for improper purposes. They pause there before it goes on. Any questions about that framing? Any questions? So are we putting here Jim in in effect creating a certification program? Yeah. Senator, do you have a question? So let me share my screen from it. I'll come back to we talked as well about the idea of conditioning funding on application of anti-discrimination laws to these schools. I haven't put that in the bill and I'll explain why. But let me go through the bill first and then we can talk about that element of it as well. Thank you. I'm going to share my screen if I can. And show that. I'm going to bring that over. Okay. Can people see this? Not yet. There's the old windows. Is that the old windows? I don't get it. Looks like it wasn't opened up. You need to open the document on your desktop screen. I did that. Yeah. Let me find it again. You take your time while you're doing that. I just I don't know if anybody has seen the perhaps the worst or the funniest technology mistake that I've seen in a while with the the attorney who had the cat filter on. Has anyone seen that? Oh yeah. I mean there is nothing that tops tops that one. I will send it along. I will send it along. I sent it to Dick Sears. Oh you did? My daughter sent it to me like at six o'clock in the morning and then I said oh my god. Well I saw in the news I think it was no less than a week ago and I don't know if it was a senator house committee in New Hampshire but there was a legislator whose cat continued to get in the screen and that caused some frustration for committee members to the point that they're trying to do something to ensure your pets are not seen in the New Hampshire legislature. Really because one of my cats will sometimes jump behind me and Senator Pearson and Finance, his cat when I was on Finance would always pop in and other cats. Yeah that's funny where people I wonder why they want to stop seeing pets in the screen maybe just. I didn't dive into it. My kids walk in front of the screen four times six times a day so I mean look at. Right. How can you be upset? Last year in this committee we saw a lot of pictures of Senator Ingle's cats. She just was showed to us around the committee room. Senator Ingram's. Ingram yeah not Ingram. Yeah yeah. Jim. Yeah I'm having trouble here I'm not sure why I'm sorry. If it's better for you we can always follow along. Is it on the committee? I believe it's been posted. Yeah if you don't mind that would be no that's fine. This time that's probably the better way of doing it. Does everybody have it with anybody can everybody find it? Which one is it on there? Let's see. Senator Campion if you give me a couple of minutes if you want me to post it I can. I don't see it there. If you have not posted it yeah that would be great. I have posted it but you want me do you want me to try to share it? Where is it on the committee page Jeannie? It's under Jim's name. Second second. It should be under Jim's name. Okay. I think it's the second one the first one was just finished and then yeah. Okay great and great everybody have it? Okay great. Okay thank you. Okay good so I will go through this draft. It is a draft that could be conveyed though right now it's under Senator Campion's name and it prohibits it proposes to prohibit school districts from paying tuition to certain schools or programs regardless of religious status or affiliation unless it receives certification from that school or program that none of the tuition for which payment is requested has been or will be used to support religious destruction or worship or the propagation of religious views. So this findings and purposes let me get to take you through those because it emphasizes again what I said at the beginning. So first you have the Vermont Constitution has the common support clause which provides that no person can be compelled to support any place of worship contrary to the dictates of conscience and then it shouldn't in town decide back in 1999 the Vermont Student Court held that school district violates the compulsive support clause when it pays public tuition to a religious school in the absence of adequate safeguards against the use of such funds for religious worship or instruction or the propagation of religious views. And it says the purpose of this act is to define adequate safeguards that a school district must employ to ensure that public tuition is not used for religious worship or instruction or the propagation of religious views. So Section 2 amends a section of statute dealing with the payment of tuition to spokes. So A is not amended but what A says is that a school district shall not pay the tuition of a student except to a public school and approved independent school and independent school meaning education quality standards, a tutorial program approved by the state board and approved education program or an independent school in another state or country approved under laws of that state or country. So you can pay tuition to that list okay and what B says is that a school district shall not pay tuition under Subsection A of this section to any of the schools or programs identified in that subsection regardless of this religious status or affiliation unless it receives certification from that school or program that none of the tuition for which payment is requested has or will be used to support religious instruction or worship or the propagation of religious views provided that public schools that receive tuition from a school district are exempt so we're not requiring public schools to certify this because they are public schools for any independent school tutorial program etc listed in A this certification will be required and then it goes on to say instruction and religion that focuses on the history and teachings of various religions shall not be deemed to support religious religious instruction or worship for the propagation of religious views provided that the instruction is not designed to and does not support religious instruction or worship for the propagation of any one religion or theology or group of religions or theologies that is designed not to prohibit schools from offering survey courses in religion right um that language might need to be tweaked a bit but that's the idea behind that language I mean that Jim that could even be you know somebody a school offers uh you know uh Fedford Academy offers a course in the New Testament they can still do that uh or or does it have to be served well I'm not sure so that's what we in testimony I think I'm not you can test me on that because I wrote to be kind of survey like more or less okay um I'm not sure how to write write that if it's if it's a course in a specific religion I guess the point where it seems like this is instruction so I'm not sure how you how you how you try that line okay um so I wanted to mention Professor T-Shop's testimony he he recommended recommended this same certification in his testimony um and he also mentioned that the certification approach is simple and practical and he said it's a great advantage advantage of certification mechanism is that it avoids the need to get into any great detail about which expenditures might be eligible for tuition reimbursement and which might not be not be and then he was trying to say that the mechanism of certification is a familiar mechanism used by both federal government with court approval so this method we're talking about is been approved by the Supreme Court in my various courts so this is trying to method of providing a safe part so um I'll pause there before we talk about discrimination when you pause there and if you've got questions on the belt language itself where you approach any questions uh Senator Chairman Zuny thank you Senator Kimme so um Senator Hooker understands we I'm thinking of locally we have a Catholic elementary school and we have a Catholic high school and you know if you decide to send your children there you pay the tuition it's not funded by you know tax hours so we already have that in place I guess maybe I missed a part but what what are we are we just trying to strengthen that foundation or what are we trying to accomplish with this bill um Senator Campion because I already thought it sort of is already in place that we're not paying for you know for kids to go to these Catholic or private religion schools so this would this probably wouldn't impact I don't think your schools at all unless you're not in a choice district so correct me if I'm wrong Jim this is this is we're saying if somebody these are schools that if a um if you're in a choice district you now be able to right now you're able to take your choice dollars to a religious institution and we are getting sort of mixed things happening out there some people are saying yes some districts are saying no this would give some clarifying language to make sure that uh schools know under what circumstances they districts know under what circumstances they could be sending and to what schools does that make sense Jim well let me let me be afraid to answer a little bit I could um so so uh so so these schools are well and there are tuition districts nearby right um and they they could send their kids to private private schools in Rutland um uh also if you're a public operating school you can send if the district allows it uh you can send your child to a different school outside the district pay for with tuition dollars public tuition dollars um so for example our school that operates uh operates schools the district operates schools maybe doesn't have a program that a child wants but maybe it's over there um in in bed school so both operating schools in more narrow circumstances and for tuition districts um um they they can send children students to independent schools under current law um they um as you mentioned um in Rutland the religious schools are parents are paying their own other own pockets for those programs right because school districts have been saying we can't provide funds to religious schools but that's not what the Rockstone Court said Rockstone Court said that you can buy tuition to religious schools if there is a safeguard that the schools are using that funding for religious destruction so imagine that that the school in Rutland um the Catholic school in Rutland has a has a system that says okay we're going to take public tuition but we're going to use that to pay our religious teacher or our gym teacher or wherever but I can usually have to pay for religious destruction we use that in these other areas are not for that purpose that is permitted permitted under the Vermont Constitution and under the shipping case but what's happening today is districts are saying no because you're in school you can't do that and that is unconstitutional so this is a way to thread that and basically give guidance school districts to not say no but to say yes if you have safeguards in place and the way to do that is your certification so with this change um Rutland um or let's say Chittenden Chittenden is a tuition town uh Chittenden could pay tuition to your Catholic school in Rutland if the Catholic school in Rutland gives a certification to Chittenden school district that funds are not being used for religious destruction worship or propagation so we change we change what's happening on the ground now okay so that that that helps a lot so I let me just pitch this here I live in Rutland town so we don't have a high school so I had school choice I could have went to Rutland or Proctor West Rutland or wherever I could have essentially I could have gone to Mount St. Joseph's in Rutland if I wanted to um and right now for Vermont Constitution Vermont law would have authorized the tuition to be paid to MSJ on my behalf if they can certify that it's not being used for Roots use yes interesting yeah okay let's say it's 1999 but I should say there's been no guidance issues since I've dated so school districts have been on their own I think this is a you know maybe maybe senator Hooker knows more but I think this is a sort of a hidden secret to most people I mean I've never heard of this before you just live around here with Catholic schools you know if if you're going to the Catholic school you know your parents are paying for it or you're going to the public school so this is this is interesting to me but wasn't that one of the cases that was brought up in Chittenden I mean I know that there were there was um discussion about whether or not the kids from Barstow could go to MSJ yeah so the case that came up with Chittenden back in 1999 um which was exactly Chittenden involved actually going to I think March St. Joseph so that was the case actually and um there have been a number of cases since and and a year ago or so the Supreme Court in the Espinoza case said that you cannot discriminate against whether this school was based upon their sass and that's what's been happening over the month so um that the kind of urgency around this if you will is that we are not well placed right now to get on the right side of the line and if giving some guidance to districts after how to how to do this in a way that it's constitutional is the purpose of this the way it's served is that helps full Senator Karensen yeah okay but Jim is every given that the Espinoza case that was a federal case yes our are basically all the states right now in the union dealing with this same kind of thing I mean well maybe not grappling with it or trying to do what we're doing but you know if you're in in Wyoming has this opened up that Espinoza cases opened up a similar uh opportunity situation where they too can say if their version of Rutland town in Wyoming can now send their kids to their version of uh the Catholic school in Rutland yeah so what's happened it's just saying that the Espinoza case that was my town my town law actually and I think I mentioned in my slideshow a while ago many states adopted the so-called many brain brain amendments in the 1800s which were amendments to their constitution called no aid provisions those provisions said uh the state shall provide no aid to uh business organizations right and um and the Supreme Court found that's discrimination based upon status as well as it said so struck down essentially the montan constitution um provision and likewise states that have that provision the provision was adopted uh as an anti-catholic thing back in the 1800s um and so many states have that provision we don't we've got our propelled use provision which is around how you use funding so we we're a much better place in terms of constitutional law in Vermont we are consistent with the US Supreme Court but in practice we're not because in practice school there's been denying uh public funding to these schools based on the status so while we're okay constitutionally right now we're not okay on the ground and that's what this is the standard cure okay center uh center hooker oh thank you Jim um with regard to the certification I know that you know we're as long as they can certify that they're not going to use it for um religious based religion based studies or payment to staff and all of that um what else would that include I mean how do they have to itemize you know each of the things that they're not going to use it for and and what do we do we have any um sense or parameters around um what are those those functions those religious functions I mean talking about the possibility of offering say a a survey of a comparative religion that would be okay but hiring someone to teach theology would not is that correct yeah it does leave um the language in the draft bill now leaves a quite open bag for sure um and that was the recommendation of Professor Teachout because he was worried about going down the other avenue trying to define all these parameters in terms of segregation of funds and and things like that so his idea was keep it simple make a certification which has been accepted by the court um but it does open the question as to you know is there some audit audit that's done after the fact to find out how the use of funds is there's some control I mean you're basically relying on the honesty of the school to certify so you might decide to you know have the out of it you have some odd artwork done or have some parameters but this recommendation was keep it simple just do this but it's up to you of course what you do but that then begs the question of you know blended funds and and separate accounts from coming from public schools yeah it is very much it sounds like the honest you know the honor policy here you know please do this and we hope that you know you'll you'll abide by what we're saying I I still worry a little you know I well we'll get into the anti-discrimination stuff center Perswick and then center lines that was going to be my question about the anti-discrimination stuff if we were going to get into that or not yeah I think that's going to be next after we finish up with other questions center lines that's also my question but yeah a comment that gee I really hope we can trust religious schools yeah seriously yeah yeah no I the moral fiber right so before maybe you go to anti-discrimination is there a way to so let's talk about the teaching of science for example do what we should we say that science has to be followed by the Vermont standards if you know creationism versus the teaching of you know evolution I mean are there things there that are concerning to you Jim well I I guess what I'm thinking about this from um I'm trying to not go into policy and your jobs I'm trying to try to line here if you won't but what I see is the course of facing bad records the only thing I saw was in the record right now the records are showing decisions by school districts that are based upon not providing funds based on status so the goal here might be short term goal do something quickly to get the record and bear a place so of course have a record that you take an action and give them guidance it's mandatory um and at least they have a record so they know that we're not discriminating on that basis whether you go further and add um anti-discrimination language or you know various other conditions um if you do that my fear frankly is that you're going to bother to go down so much that it might not make it through and we're going to have to figure out what we have today of course we're looking at so you can always take on the discrimination point at future time in terms of what schools have to comply with um but so I was suffering that conversation in my mind a little bit because I was just concerned that that that addition could really affect the likelihood of this fix being put in place in a short term way to create a better record for the courts uh for Vermont um are you particularly concerned with I mean us getting something through the senate the house and the governor's signature if it has the anti-discrimination because I feel that that I wouldn't personally I feel pretty confident that uh we would be okay there well it's my concern is more about constitutional issues so I think once you start adding those things then you raise a host of other issues that have to be dealt with so for example we talked before about applying labor laws to religious schools and the exception they have for um when people were considered to be uh ministerial function so in the U.S. Constitution as talked about between court there is an exception where those schools can discriminate against individual whose employee um and they can discriminate on the basis of age of sexual preference so that's that's attacked by the constitution so if you try to add that as a condition here you're up against constitutional issues there and I don't know as we talked before we've got the anti-discrimination laws in Vermont based on public accommodation and I'm not clear in my mind whether those laws apply to private schools or don't because it's not clear to me that they're open to the general public because they're private schools so I think if you if you add that provision maybe it's okay but I think you have to hear from the uh the right advocates around those laws to figure out how they apply we don't apply what the issues are so I think it gets a lot more complicated once she goes down that path because it raises other issues um I'm not saying that's not a good idea from a policy standpoint I'm just saying it raises no no that's helpful I wonder uh and then Senator Hooker if uh you know we've heard from Professor Teach Out which was was helpful I'm not questioning his skills or talents but I wonder if we should also hear from another constitutional expert and that's just something that maybe we can we can talk about in terms of possibly finding one or just getting another opinion Senator Hooker. I don't know if this has to do with the anti-discrimination or what but would this be open to every religious school are there some kind of parameters around well I guess it would be discrimination if we didn't open it to everyone but you know you have some people who open a school with certain religious intent and you know it may just be in somebody's house and kids are going to that school and you know how I mean they would have to be recognized correct uh more more than recognized so schools who which are eligible for public tuition whether you're sectarian or secular or wherever have to be approved by the AOE so they have to be approved by the AOE a bunch of standards for approval based upon academics and teaching and so you have to be approved first and some of the religious schools are approved by Bryce Memorial is approved even though it doesn't take public tuition because it wants the stats to be improved but in order to take public tuition you have to be approved so it can't be anybody has to be approved in defense school. Okay and that of course has to comply with all kinds of regulations to be approved because we do have another religious school in Rowland that is you know has been running for quite some time I'm not sure what their status is. Senator Perslick anything? I'm so interested in the state's interest in ensuring that these schools that are getting public funds aren't discriminating and maybe that's through that a public accommodation you know portal if you want to call it that so I guess I'm just saying I'm interested in that conversation to hear more more about that and is there anything the state can do about that? Yeah I know I too am interested. Senator Lines? Yeah but I do think that once you consider anti-discrimination for the institution then there is let me just ask this question there is no requirement that the institution accept or allow for any certification to receive the public dollars so they wouldn't have to do that I mean they wouldn't have to right? I'm asking Jim that question. Under this bill any school, any independent school, any approved independent school whether secular or sectarian would have to certify but they're not using the funds for right but they don't have to accept any funds so then if there is an anti-discrimination policy embedded in our bill then independent schools say well look you know what we we want to continue doing what we're doing period end of conversation then the question is who suffers from that then the kids don't have the opportunities you know but but it also then it also says that they're discriminating against kids you know so it's that circular argument it's just pretty horrific. Well it sounds like it would be if you if the school said if we said you needed to follow the state's anti-discrimination policy and the religious school said no we won't accept that out LGBTQ teachers we you know we'll have students you know you know we kind of have that policy then they would just have to find another school to go to basically if if that's you know their choice district might you know if if we let's just take you know you go to Proctor or Firm Burton Academy instead of of the of the religious school. So the question is do we want to look at anti-discrimination? Do you think Jim it makes sense and committee members but Jim you might know more on this does it make sense for us to talk who else does it make sense for us to have this conversation with while we're making a decision for example does it make sense for us to have the Attorney General and does it make us make sense for us you know to hear from other individuals in particular? Well I think the Human Rights Commission the other ones to administer the the accommodations of all so definitely from them. Labor the expert in the office on labor issues is Damian now so if you want to hear more about that exception that we talked about in labor law he'd be helpful. A.G. I'm not sure A.G. has been involved in some of these cases so you might want to get the perspective I'm not sure. Chris Curtis from that office might be somebody who might be helpful there. Senator Lyons were you going to? Oh no I was thinking uh Brent Hare's been really helpful to me and looking at constitutional issues and I'm wondering if she what your thoughts are with another Ledge Council on constitutional issues I mean as compared with Peter Teachout it's kind of difficult that's a question for you Jim. I'm not sure that Brent covers this area specifically. The lawyer that covers the accommodation laws is David Hall. Oh okay. Yeah. So I'm sorry did I interrupt Senator Lyons were you going to have system else? Okay so I will if it looks like perhaps the committee is interested in hearing then more information on whether or not we should include anti-discrimination language if we were you know going forward so we will go ahead and we will set I will work reach with reach out and work with Jeannie who uh and uh continue some testimony in terms of this the urgency of this Jim um this is something that uh you think in your professional opinion we need to do something with this session this year. Well I'm I can't I can't say it that way because it's not my role to tell you tell you that. I am just seeing that that the record before these courts though looking at these cases it's not very good because the record is now based upon the status and just haven't had the guidance they need so if you want to have a better record going forward put the courts to consider this is a step to take this is a option to take in that in that regard. Yeah and it sounds like also I will talk with Senator Sears a little bit also this weekend to see if maybe as we're working on this they might want to have their eyes on it either early or they'd rather wait until we vote something out and then kick it down their way for them to have a look before it makes its way to the floor which I would feel feel a bit about. Jim anything else from you this very helpful um you know we had jumped into this a little bit challenging topic and I will work with Jeannie to bring some additional perspectives in next week. Senators anything else on this or anything else for the week before we say goodbye to one another for a few days. Senator Perslick. We could use the term science-based religious instruction. You could. Do I hear evolution? Just tie it in with the literacy science-based everything will be signed. Evidence-based religion evidence-based would really be the coolest right? Wait a minute they're all based on faith. All right nothing else on this nothing else on any other topics please I'm going to jump in soon after this and try to finish up what I'm going to talk to Senator Kitchell about and we'll send it all off to you for your okays or your edits and feel free as usual please edit freely and if you want to call and talk about it that's that's great too so okay thanks everybody thank you thank you Jim thank you send your vaccine questions in please we'll do happy Valentine's Day everybody oh happy Valentine's day