 Thank you. Good afternoon. Welcome to Senate Education. It's Friday, January 7th, 130. We are going to return to a topic that we spent quite a bit of time on last year or some time on last year, and that is the some of the issues that the state, the country is dealing with around public dollars flowing to religious institutions. And we know that there are there is one Supreme Court case. There are other multiple state level cases and federal cases happening around the country where individuals in the courts are trying to best understand what some people would consider a line between church and state. And we've asked Jim Demeray and Beth St. James to come in today. Give us a little presentation to bring us back to the issue. There are, as we'll learn when we're discussing the situation, different ways to handle this situation. One of which is to to wait for the courts. But there are, of course, I put in up just an idea of bill based on some of the conversations we had last year that might get us started. And I think there are other ideas out there that some of you may have and different members of our constituencies might have. So this is something that Jim certainly is very familiar with. So I'll turn it over to you now, Jim, you and Beth for your presentation, unless I see questions or any other initial comments from committee members personally. Okay, so you don't mean, okay, great. Jim, Beth, thanks for joining us. So for the record, Jim Demeray, that's console. A little better now, but it's still not great. What's that? Beautiful. Great. Okay. Okay, so we have a PowerPoint presentation to go through. And Chair Campion, would you like to have that shared on screen or? Sure, that'd be great. And we also, does Daphne have copies of it? She does. Yeah. Great. So that's on our website, presumably. Sure. This. Okay, that's too far along. Okay, so can people see this? Yes. Okay. All right. Okay, so we're talking today about the constitutional issues that surround the use of public tuition. For independent religious schools. And we're going to talk about today, four topics. The first is when are religious schools intelligent to public tuition? Second, are religious schools places of public accommodation? And therefore, if they are, they would not be allowed to discriminate against protected classes. And protected classes means race, gender, sex, sex, et cetera. Third topic is Cambermont require that religious schools comply with anti-discrimination laws at the condition of receiving public tuition. The fourth topic is what about dual enrollment? How does that fit? And I'll take the first and last topics and Beth will take the middle two. So the first topic is when are religious schools intelligent to public tuition? The U.S. Constitution, the First Amendment has the free exercise clause, which says that Congress shall make no law prohibiting the free exercise of religion. And that's what we will be talking about this primarily through this presentation. What does that mean? The relevant case here came in 2020, Espinoza v. Montana, where the Supreme Court decided this case. And the facts there were that Montana provided tax benefits to individuals who donated money for private school scholarships, but prohibited the families from using that scholarships at religious schools. So this isn't exactly our fact pattern of tuition talent's paying tuition, but it's similar in that this is a tax benefit encouraging private school scholarships, but not for religious schools. The prohibition from Montana was based on its constitution, which bars government aid to any school controlled by any church. It is a so-called no aid provision. I'll come back to this. This constitutional provision is in over half, I believe, of state constitutions, not for months, but as a common provision in other states' constitutions. And the court held that Montana's no aid provision violates the free exercise clause because it bars religious schools from public benefits solely because of the religious character of its schools. So the court held that a state need not subsidize private education, but once the state decides to do so, it cannot disqualify some private schools solely because they are religious. The case stands for the proposition that a religious school cannot be denied a public benefit merely because of the school's status as a religious school if the benefit is available broadly to others. So in this case, it's available to secular schools, and the use of that benefit is directed by individuals as a result of their own genuine and independent private choice. So those two conditions are met, broadly available benefit directed by individuals, then you can't deny that benefit to a religious school based on its status. Let's open the question of whether a state could, instead of prohibiting public tuition going to a religious school. Let's open the question of whether that funding could be allowed on the condition that the school ensures that public tuition is not used for religious instruction. I'm going to pause here for one second to draw out the fact that this sets up a well-called status versus a use division line here. So espionage that involves improper improperly disadvantaging religious schools based on their status. That's clear, can't do that. The question that's left open is if a state will come to Vermont or Vermont does this, if a state has a role that says you can use tuition for a religious school, but there has to be safeguards against its use for religious worship. That question, the courts did not decide. The other thing before I move on, I'll say it's about the no A provisions here, so I mentioned on the previous slide. These no A provisions came about in the 1800s when a congressman named Lane from Maine tried to get the US Constitution amended with this provision. And his, the idea behind that was to disavance Catholics. So the whole kind of no A that didn't happen at the US constitutional level, but that prompted many states to adopt that very same approach and prohibit aid to a school controlled by a church. And the court talked quite a bit in espionage about that background about the fact that the no A provision that it's basically striking down here in this context came out of bias against Catholics was it was important historical background or seem to be in this case. I missed that now because it's relevant when I come on to case in a few minutes. That's relevant to Vermont. Okay, so moving on from this, this topic here, moving over to talk about Vermont. So Vermont Constitution has a provision called the compelled support clause, which says that no person can be compelled to support any place of work contrary to the dictates of conscience. So it's not a no A provision that say that we can't can't use money at all. But it does say that you can't use government money to support a place of worship. So a bit different than the no A provisions. This, this came up in 1999. In Chittenden, the Department of Education case, where the Vermont Supreme Court held that a school district violates the composed support clause where pays public tuition to a religious school in the absence of accurate safeguards against the use of such funds for religious worship or instruction. So, in conclusion, Vermont's Constitution allows public tuition to go to religious schools, and therefore does not allow discrimination based on the school staffs. But there has to be safeguards to ensure funds are not used for religious, religious instruction. Well, Chittenden survived Espinoza. Currently Vermont's Constitution as interpreted by Chittenden is consistent with Espinoza. They both permit public tuition to go to a religious school and do not allow discrimination based on the staffs of the school. However, the Vermont Constitution requires safeguards against the use of public funds for religious instruction. So it's not clear whether this use condition will survive further Supreme Court scrutiny. Any questions before I go on. Anybody have any questions, feel free to shout them out. That's your personal question. Who was the Chittenden in the Chittenden was the Chittenden school district. It was, it was Chittenden town. So it's down by Roland. Yeah. Chittenden town is a tuition town, and they wanted to send their students to Maxi, Joseph's, I believe, in Rotland. Yeah. I admit, please. So, can I just get a Senator, Senator Chittenden. I don't want to steal your thunder from where you're going with this gym, but if I recall correctly from Professor teach out presentation, he introduced the other concept of not necessarily discriminating or delineating on religious instruction, but instead on discriminatory instruction. Is that where you're going to be presenting as the distinction between the two. He was talking, we were talking last year, I'm going to stop sharing from it, so I can see you. Yeah, last year we were talking about two certifications. And one was a certification that would have the school, whether a secular or sectarian either have the school certify that it won't use the funds for religious instruction. And then, secondly, there was an additional certification we talked about last year that would have them certified that they will comply with all anti discrimination laws that apply to public schools. Right. And that's where that one comes in. We'll talk about, we'll get there in terms of we're not talking right now about the bill or the options. We're talking about the background, but I'm sure we'll get to talking about those other other points. Senator Hooker. Thanks, thanks Jim. So just explain to me again, the, the quote from the Constitution that says no person can be compelled to support any place of worship contrary to the dictates of conscience individual conscience. And that as far as, you know, taxpayer dollars, if one person is, is opposed to it, does that mean that, you know, it shouldn't be used. I mean, how does that play out. Because then, you know, then you talk about the money being used for a religious school but not being used for purposes of religious instruction. So the way the court lifted that in Chittenden, the Vermont Supreme Court, was to say, look, the compelled support clause essentially means that tax dollars should not be going to support with this disinstructional worship. Because using tax dollars that way would violate if I'm against that as a taxpayer, we violate my conscience, if you will. So the court was at that way, and basically said, you can use this, these funds, these public funds for private religious schools, that's okay, the principle but you have to not use for worship, right, or instruction of for religious, religious purposes. So that's how the court came down on that question. Senator, did that answer your question? Okay. Senator Tarenzy. Yeah. So, thank you, Senator Kimmy, I think my question has been somewhat answered but I just want to give you a scenario so if, if say, my wife and I decided we want to send our kids instead of sending them to the Rutland Town School where they go now if we decided we wanted to send them next year to Christ the King Elementary School here in Rutland. We could do so using public dollars, but Christ the King would have to somehow sign a document or or somehow prove to the state that those tax dollars were not going to pay for the Catholicism or Bible class, right? Yep. There has to be some safeguards and the process that was discussed last year was the certification process. So, I guess I asked the question and I know that we talked about the somewhat less session, Senator Kimmy, but what are, I guess what, what are, what are we trying to accomplish here. In other words, it seems like there are safeguards in place. It seems like for those who want to take advantage of it, they could. What, what are we trying to accomplish here? Well, I'll come on to it on my slides, but since 1999 when Chittenden was decided, let me back up. In terms of paying tuition, that decision is made by school districts and their boards. Okay, so a parent in a switching town would go to its school board and say, I'd like to go to this school, independent school, and the district therefore has to decide whether that's permissible or not. Since 1999, when Chittenden was decided, there's been no meaningful guidance given to school districts as to how to ensure safeguards are in place. There's been nothing from the, let's say, sure, nothing from the board, nothing from the AOE, AOE gave guidance for a few minutes and then withdrew it. So they gave some guidance, but it didn't stick. So there's been no guidance. Not that there has to be. I mean, school districts could just like figure out, right? But there's been no guidance. School districts have been very uneven in this practice. So sometimes it said, no, you can't, you can't go. This is religious school. Some of them have paid. And now under various court cases of being forced to pay, even though that forced payment is not consistent with Chittenden, because now we've got court cases where the U.S. courts are saying under Spinoza, you have to pay this money because you've been screaming based on stats, but there are no safeguards being put in place to ensure that in the future, there won't be, it won't be used for that purpose. So, yeah. So I could go potentially, and I don't know how my school district would handle it, but I could potentially go to my school district and say, okay, I want to send my kids to Christ the King next year. They would have the, in their opinion, potentially, they would have the right to say, yes, okay, we'll pay for it, or no, we're not going to. And if they denied me, that could be potentially a violation of my Vermont constitutional right. So it denies you. It could be. It's not based upon the stats of the school. Yeah, and that's what the cases have been about in Vermont, and there have been a number of cases in Vermont on this very topic. But may just interject, would Senator Taranzini have to live in a choice town in other, you know, to take advantage of this, or could he live in any town? I was, I was under the assumption that if Senator Taranzini, you know, right now has the choice to send, you know, two or three schools, one of which could be this, the Christ the King. Yeah, so Vermont is interesting. So this is, this is very relevant to going forward. Vermont system, of course, is to, as a system to say, if you don't operate schools, then you tuition your kids using public tuition, right. But if you operate schools in Vermont, you can't just take your kid and give them a voucher and have them go someplace else. So we don't have school vouchers the way most states do. Most states have vouchers that apply to kids going to operating schools to give them a choice between operating and we are only given that choice as a system to districts that don't operate schools. So we have a very unique history here behind how we do things in Vermont, which I'll come on to because it might be relevant to a future case. But could Senator Taranzini, that's that's so could he if he's not if he has a local public school right there. Yeah. Can he is under the current situation. Can anybody in any town say I'm going to leave and take my dollars and go to Christ the King or St. Joseph's or is it just in communities that don't offer a public school option. It is. It's a yes or no answer. The yes part of the answer is as a system that's true is only for tuition in town says the system, right. Everybody in switching town gets this matter. Yeah. However, if you're in an operating district. And if, for example, the school that you're going to just offer certain programs or sports wherever you can petition your school board on an exceptional basis to go to another school using public tuition. It's fully at the discretion of the school board to decide. It's not a wide school choice thing. It's just a very narrow thing. But there are some living circumstances in operating districts where tuition can be used as well. So Senator and Zini had just want to play this out a little bit more. If he is not in a, if he isn't an operating district. And he just his daughter really wants to play lacrosse. The local school doesn't have it. He can petition the school board to say, Listen, this has become a real priority for her. And that was it. I want her to go to, to the public school, you know, that the Mount Anthony Union High School. That is a great look. So it's, it's for all different kinds of reasons and the school board could say, Yeah, that makes sense or they could say, No, you guys are going to stay put right here. Right. Senator terms you have a follow up. No, excuse me. I appreciate the line of questioning. Senator can be I think I'll use once again my municipality for example we have Rutland Town School. We have a school within our within our four walls of our of our town but we're ascending high school we don't have a high school so we have to wish now so I could have went to Rutland Proctor West or wherever. And at the time, there was not. It was not well known when I was in high school I don't believe that I could have went to MSJ now St. Joseph in Rutland and use taxpayer dollars for it. So I think in our scenario in Rutland town my kids would have to go to Rutland Town School and then for high school. That's when I could if I had chosen or if I choose to I could then petition my school board to say I want my kids to go to this Catholic school. Yeah, for X, Y and Z reasons. Is there a bill number center can't be on a missing attached to this. I just put a bill in today that it's not really I'd say a tat this is all background information bill that's going to be coming to us that tries to again back to your initial question to me which is, What are the goals, I would say, do we have a majority of people in the Senate or in this committee that want to take steps that would make sure that schools that are taking public dollars aren't discriminatory number one. So we want to put some guidelines around those. And is there a majority in the Senate and in this committee that would want to make certain that public tax dollars aren't going to in other words putting some guidelines around how dollars could be used so if you so if a family were to take the dollars and go to Mount St. Joseph's. Although I would admit it would be a very hard thing to do but to have them certify that they're going to use those dollars for the, you know, math science French German, whatever. It's not for if there were a daily church service for for religious instruction that kind of thing. And I don't know if there is a majority on the committee or in the Senate that would would want to take those those two steps. The other piece of it is, I think, there are districts out there that are kind of uncertain as to what they're going what they can be and what they should be doing and. So the third piece of it would be some clarification. I know is there some some clarification that we need to give districts right now so those are the, I'd say for me the way I'm approaching this. And giving committee members and colleagues those options and what I put in was was based on some of the, some of what I just talked about and some of what we talked about a little bit last year, as a way to get some of this conversation going. Anything. No, no, that bill is being set up for an introduction so we ready to go next week if you want to talk about them. You have a follow up. No, you're okay. Center Alliance did you have a question. No, okay. Okay. And we'll go back to the presentation. We'll go here. Okay. So we talked about whether shouldn't do more survive. We don't know because we don't know the court's view of this use distinction. However. Next slide talks about this main case, which is very relevant to Vermont so. In the case of Carson being making Jim do that may I just go back to one other thing. Yeah, you mentioned in the decision that the courts have been referring to. I think he was Senator Blaine at that point US Senator Blaine from Maine, his attempts to prohibit public dollars going to particularly to Catholic institutions I mean it was a time in this country where I think we had a lot of against Italian, other immigrants that were coming in, bringing Catholicism, and there was a I think a threat I know in New England, people saw it as a threat to their sort of New England ways etc and whether or not. In some ways, the pope would take over. Tell me a little bit about why the courts are referring to that period of time and Blaine's attempts, even though his attempts weren't successful. I'm not sure why to be honest with you. I can I can tell you that the opinion took a few pages I think talk about the background of the blame amendments, and basically to say to the same you're relying on the no aid amendments to deny a benefit to religious organizations. Of course this seems to be somewhat informed by the history of those amendments coming out of an anti religious sentiment sentiment. And it's over to because the court found basically, in that case, for the for the school, right, they found for the school. In any case, which we're about to discuss finds the opposite finds makes a finding. Contrary to Espinosa. And based on the history of mains statutes, a constitution so let me talk about that now because it might be helpful for your, your answer. In this case here, making was decided in 2020 by the first circuit court of appeals. The answer has been appeal to the Supreme Court. So the Supreme Court heard the appeal in January of this year, and we expect a decision by the summer. In the case is like from a man allows towns that do not operate schools to use public funds to pay tuition dependent schools. So this is directly important to what we do here. And according to the court making main main allows public funds for religious school tuition but prohibits these funds from being used for religious instruction. So the main system, if you will, is similar to the Vermont system, and it makes this use distinction. So it says, you can use the funds. Fund to go to these religious schools but they can't be used for religious instruction so it's very similar to Vermont in that way as well. And the first court, first circuit court of appeals held that this system main system did not violate for exercise clause. And that was consistent with Espinosa because impose a permissible use restriction. So what what that tells us is that we don't know today, whether this use versus that distinction is going to be upheld. We do know that it was appellate in this case this use restriction was appellate in this first circuit opinion, which we decided to be in court this summer. So, in terms of certifying, requiring schools of Vermont to certify that they won't use the funds for religious instruction. If you do that, then it's a possibility the court will decide the summer that use of sanctions evolve it and therefore that certification is not valid. In other words, if it goes that way, the court would basically, the rule would be that whether your restriction is based on sass or use, you have to pay. You have to use public tuition if that benefits me available to sec to separate schools, schools as well. So just for everyone's I've been living a little bit of this, this summer so I just wanted to make sure everyone's clear and make sure I'm clear. I was saying, for example, if we were to go forward, as I just discussed in pass a bill that would put restrictions around how dollars can be used when they go to flow to religious schools. That the court very well may in this June come out and say, hey, sorry, putting even restrictions around those dollars aren't isn't going to be allowed going forward. It's not going to allow for more of a flow for dollars to go to religious schools, whether or not have with no restriction on how those dollars could be used. Correct. Correct. Yep. And what about the anti discrimination piece related to it so we know that. Okay, great. Senator Shannon. Never mind if it's coming next I'll wait till then. Okay. So we're not going to come with discrimination yet. We're only talking about use versus stats at this stage. I do want to talk a bit about the history of Maine, because the court and this decision spent quite a bit of time to talking about man's history in that just like Vermont, because of its being a rural state. The court did not break schools and essentially used independent schools as a substitute for public schools. So that decision and Carson remaking. They talked quite a bit about that and come therefore saying, it makes sense that you wouldn't want your school to to provide religious destruction because you're trying to make it like a public school. It's only because you operate schools you have the system to begin with, you're trying to get to a point as a state where basically it's an option for public education. That's true for Vermont to so I'm not sure how much these histories matter, but they were quite discussed in both these cases Carson and Espinosa with different results. So just to mention that Vermont history here is lined up with this, this main main case as well. This slide for me before moving on to Beth talk about discrimination is recent Vermont cases we've had a number of Vermont cases and a mystery proceedings at the State Board of Education that have recently found that public tuition payments were denied. These schools because of their status and violation of Espinosa. And those decisions have ordered these payments to be made. In these cases, the evidence show that school districts denied these tuition payments due to the school staff not based upon their proposed use. So it's kind of an easy decision to make basis. As I mentioned school districts have been given no guidance on this. So they're kind of left on their own. Right now they're in the uncomfortable position of being ordered by yours court to make these payments. But in doing so, they're likely violating the Vermont Constitution as interpreted by Chittenden because you're not getting any assurance that these schools aren't using the funds for religious instruction. So it's putting the districts have uncomfortable position. I'll pause there on the terms of Beth and before I do so any questions for me on this first question. Any questions at this point. Senator the lines. Yeah, okay. Okay, okay, okay. So I'll run the slides for Beth. Okay. And the question, I'll give a better year. Pressures on Beth this is your first presentation before us. Thank you for reminding me of that pressure. I appreciate it. For the record Beth St. James office of legislative council. So the next question, and I think the less decided area of the law, although none of this is very decided, as you can tell, is our religious schools places of public accommodation, and therefore not allowed to discriminate against protected classes. So I'm going to try and avoid having to say next slide. Yep. Thank you. So the Vermont Public Accommodations Act is found in chapter or entitled nine. And it states, it prohibits discrimination on the basis of race, creed, color, national origin, marital status, sex, sexual orientation or gender identity to make it easy we could just call them the protected classes in places of public accommodation. What is a public, what is a place of public accommodation? Vermont law defines a place of public accommodation as any school, restaurant, store, establishment or other facility at which services, facilities, goods, privileges, advantages, benefits or accommodations are offered to the general public. So there's some buzzwords in here. So the first one is school. The definition, the type of school or what encompassed what is encompassed in that term is is not clearly defined it just says school. But then we look at the very end of that definition. And it's clear that those categories of places need to be offered to the general public to qualify as a place of public accommodation. So if a religious school was considered a place of public accommodation under the Vermont Public Accommodations Act, they would be automatically prohibited from discriminating against those protected classes. So the real question is, is a religious school considered a place of public accommodation in Vermont. Do you have a question? Do you mind? Thank you, Beth. You've listed a number of things that to be considered public. The facility has to offer all of them, some of them. Jim, can you go back to that side? I'm sorry. Yeah, just the definition. I'm sorry Senator Hacker, do you mean are all of those categories considered public accommodations? No, does the facility have to offer all of those categories or just. No, no, no, no, those categories are. No, I can't that's a great question. I can't think of one that does. It would just be a school standalone school so public schools because they offer their services to the public are considered a place of public accommodation. But if a religious school offered facilities, for instance. It's a great question to rent. Then are they considered public accommodations? That answer is still that's not a settled area of law and I will address that a little bit in a later slide, but it's an excellent question because a little spoiler alert, it's going to come whether or not a religious school is considered a place of public accommodation would most likely come down to a fact based analysis. And so some of the case law that addresses what is a place of public accommodation and there is no Vermont case directly on point in relation to a religious school. That are related to private what would places that would consider themselves private organizations and discussing the extent to which a organization that thinks it's private holds any sort of services open to the public on kind of a side business like a bingo hall or something like that is a part of that analysis. So if a religious organization were to set up a lemonade stand in front of Hannaford, they wouldn't be allowed to discriminate there just because they're a religious organization. And on a public sidewalk in front of a public grocery store offering a lemonade stand to the general public so it's not an incredibly straightforward analysis, but that is certainly a factor that a court could look at. Does that answer your question. Thank you. And I just thinking you mentioned bingo, so many schools including religious schools hold bingo nights when anybody can go. What about you wouldn't go mind going back to that. Please. So, um, if you think about place of a public accommodation means an establishment that offers some kind of advantage or benefit. Couldn't it be argued that a church or synagogue falls within that category in establishment someone you know it depends on what your definition might be of a benefit of an advantage. Can you just say something about that. Sure. I think it's a great thought. I don't know the answer to that I think an establishment I have not looked at any case law that looks at the term establishment but I think that again it would be some, you know, and we're going to get to the federal protections the Americans with disability act that comes into play a little bit with this chapter but again spoiler, spoiling a next slide. The American with disabilities act when it comes to protecting folks with disabilities specifically excludes religious organizations from application there so when we're looking at all of the other protected classes. I think that's an interesting point about a potentially broad definition of establishment. I'm not aware of any case law that has swept a church or synagogue or a place of worship into a public accommodation, but to send it or hookers point. Again, there's that analysis of to what extent. Are they offering you know those bingo nights and is the bingo night then transform it for a small portion of time into a place of public accommodation. It's not a straightforward analysis. So I'm thinking of two examples of like a store in a restaurant that are stores and our restaurants but they are not offered to the general public. I don't know if I'm not supposed to list specific names but I do about 90% of my shopping at one that rhymes with Costco, and not anybody can just go into Costco but they are a store that they are not offering to the general public but I do believe they have to abide by this rule and I would also say the victory club at the University of Vermont men's hockey game that too is a restricted establishment, but is it is it false for me to think that they all have to abide by these anti discriminatory rules and just looking at the wording of this they are stores and establishments not open to the general public. So are they then exempt from this anti discriminatory law. I can speak to the victory club because I'm not familiar with that at all I am, however familiar with Costco. You know, again, the analysis for public accommodation is whether the services are open to the general public. And what does that mean to be open to the general public, anyone can apply for a membership card to Costco. There's no, there's, you know, there's, people may not financially be able to afford it. That's really I think the only, the only hang up there is money, potentially I'm not aware of any information on the Costco application that might fall into a protected class, but I think generally speaking. And we'll get into it when we look at a case that's kind of on point to our discussion today. One of the factors that courts may look at our, you know, how selective our organizations in their selection criteria. And so, you know, I think it's a great practical question I can't imagine that Costco does not fall under public accommodation act simply because their membership is open to the general public. Yeah, I don't Jim if you disagree with me feel free to speak up. I agree with that. That's right. And what is the, what is, can you say something else about the victory club that you belong to. I just don't know if I'm familiar with it. And I do not as an elite thing but I don't know the details. I don't belong to it I call it a starbelly snitches but basically you pay $1,000 a year and allows you to go into this back room at the hockey games where you can buy and consume alcoholic beverages during the breaks. It's an establishment and you can buy things there but you can only get in if you have a membership. Yeah, I think this is important because as I start to understand private schools or religious schools if they have any, any kid can apply there. How is that different than the Costco example and so Costco has to abide by these things I would expect all schools qualified schools to some certification process to have to abide by these anti discriminatory rules. I think it really is because you can even think about the Mount St. Joseph example of anybody can apply. They may not accept you they might have a certain reason academic all sorts of things but you can apply center hooker. For instance, I don't believe there's an elevator at MSJ. Does MSJ have to comply with ADA and all of those things being a religious institution. No she mentioned just that that religious institutions are exempted correct from any kind of ADA requirements. So, then to to Senator Chinden's question. Are they exempted from, you know, everything. That's the that's the million dollar question. I think that's what we're trying to talk about here today. And I thank you if I could just briefly address the victory club. I keep spoiling all of our slides that's directly on point. Private private clubs is the case law that we have that's related to this in Vermont. And that's exactly what I'm going to talk about in another slide. Okay, private clubs fraternal organization clubs things like that. Yeah. Okay. There is no case law directly on point to whether a religious school would qualify as a public accommodation in Vermont under our Vermont state law. And of interest that we've already talked about but I think it's important to point out there is legislative. There is the at the start of the Vermont Public Accommodations Act in title nine. There's a whole section that is devoted to legislative intent. It's not very long, but it states that the Vermont Public Accommodations Act is intended to implement and be construed so as to be consistent with the Americans with Disabilities Act. And it goes on to say that the intent is not to provide more safeguards the American with Disabilities Act for with respect to persons with disabilities. So it's narrowing that legislative intent forms with the American with Disabilities Act, specifically to persons with disabilities. But as I've already mentioned, any sort of analysis trying to sweep religious schools into an ADA analysis kind of fall short because the ADA specifically excludes religious organizations from its application. It's not case law it is right there in the law there's a specific exemption for it there's very clear. This gets right to the victory club I think a club that I am not aware of, but now know more about. I struggled finding any sort of case law that was clearly on point and helpful to this committee as you begin to think about what work you want to take up and how you want to take up that work. And so there's there's no case law that I am aware of that specifically addresses whether a religious school in Vermont qualifies as a public accommodation, but a religious school if you think about it as a private organization. In this case, the Human Rights Commission versus the benevolent and protective order of Elks from 2003 is a Vermont Supreme Court case that does address whether a private club like the Elks could be covered by the Vermont Public Accommodations Act. And the analysis there really hinged on how selective the club is in its membership, just like Costco, anyone could apply for an application or a membership to the to the Elks, but it really comes down to the selective criteria used in admitting membership. So, the court, essentially, it comes down to a case by case fact based analysis of the selectivity of the organization. And in this particular case the court looked at lots of things from the specific membership requirements, the application the membership process. To the history of who they had admitted and how many applications they had denied in the past. I think specifically and this was, this was a procedural case. It did not decide the ultimate question of whether the Elks was a place of public accommodation there were some procedural issues that were challenged. And it was remanded back to the trier of fact, who had not made these case by case fact base inquiries on to the selectivity of the club to do just that. This case does not sort out once and for all that the Elks specifically in this specific case and White River Junction 2003 was a place of public accommodation, but it talked about the analysis that we need to be undertaken in order to make that public accommodation. And it's stressed that there really needs to be a high level of selectivity in order to fall outside of the public accommodations. It's not enough for an organization to appear selective on paper. So, you know, it really the analysis needs to be both of the selection criteria and it's true limits or lack thereof on admission. So it's not enough to just look at what's the application asked for. The analysis needs to go deeper in look at I think history, as well as how that analysis is undertaken how those criteria are used against someone and how selective really is the organization. So, I think it if there were to be a challenge to whether a religious school was a place of public accommodation. I don't think there would be a blanket application of all school all religious schools in the state of Vermont fall under the Public Accommodations Act, based on this case. It's likely that it would be a fact based fact specific analysis on a school by school case by case basis. If we don't know for sure whether Vermont religious school religious school in Vermont has to is a place of public accommodation and therefore automatically cannot discriminate against those protected classes. Can we require them to comply with anti discrimination laws as a condition of receiving public tuition. I already know from Espinosa that the Supreme United States Supreme Court held that the free exercise clause protects religious observers against unequal treatment and against laws that impose special disabilities on the basis of religious status. The court held that requiring a school to give up its religious affiliation in order to qualify for public funds would impose impose special disabilities on the basis of religious status and the violation of the free exercise clause. So requiring that a religious school comply with an anti discrimination law as a condition of receiving public tuition would mean that the school would not be able to discriminate against protected classes under the VPA, even if the school was not subject to the employees in employment law, which in limited circumstances is permitted under the Supreme Court's interpretation of the free exercise clause. The most recent case that addressed this is our Lady of Guadalupe, but there is a, it is a relatively strongly held case line that supports the ministry, it's called the ministerial exception, which basically holds that religious organizations can discriminate against employees if they hold a ministerial role within the organization. And how a ministerial role is defined is not 100% a black and white analysis that is more akin to a fact based case by case analysis. For example, if I may, you, I remember there was a situation where, you know, a teacher at a religious institution could be considered a minister without what many people would consider the would have come to be known as traditional credentials, and master's in divinity or something like that. Yes. Yes, the case law and, you know, if at any point, there's varying lines of case law for everything that Jim and I are talking about today we were trying to, you know, keep this kind of broad and foundational so if at any point you're interested in more information on any of those lines, please let us know but for example, Senator can be into your point. So in cases that looked at the ministerial exception they've looked at things like, did the teacher lead the students, literally physically walk them to prayer for the day. Things as broad as that, and that's part of the analysis. So the question is real. Yep, Senator Jim. I just want to make sure I understood the previous point on selectivity so did I understand that it still needs to be a fact based analysis but the court held that the more selective you are. So if you're very selective it's more likely you do not need to abide by VP. Yes, you would not be your services would not be considered open to the general public and therefore you would not qualify as a place of public accommodation. That's helpful. Our question is whether denying the right of a religious school to discriminate in this fashion. Whatever fashion. They believe they, they need to impose a special disabilities on the basis of the school's religious status. You know, Jim talked about whether denying public funds on a just the status of the religious organization was tolerable or whether that was a special disability. It's a less severe requirement that a school give up its religious affiliation in order to qualify for public tuition, as was the case in Espinosa, but it's still a form of an imposition on the degree of the school's exercise of religion. At least if these forms of discrimination are required or encouraged by the school's theology or religious mission. It's not clear how either how the Vermont Supreme Court might, or the United States Supreme Court might rule on this question, which really represents a friction between two constitutional protections, which is the free exercise versus a religion versus equal protection of the law and protection from discrimination. So this is not a well settled area of the law. And there's a lot of different pieces moving to understand and make an educated decision on where to go. So I have one more section to go. I'll just say the making case might give some clarity on this question in June, July, or maybe not. The court might not go in this area about discrimination. I might just simply do the use versus stats analysis, or might do something else but so it's not clear whether this will be addressed by by the court this summer. Okay, next is about dual enrollment and very briefly just to say how this connects to this whole conversation. So we've got dual enrollment which is taking a class with both high school and college credit at the same time. And that benefit is available to public school students approved independence school students on public tuition and home school students. It's not available to approved independent school students on private tuition, whether attending a secular or a religious school. So the issue here is that students attending religious schools have been denied dual enrollment because they are not public tuition. So once you make the decision, once the school board that school district says no, you know, certain terms and you can't use public funds for for tuition at this religious school. Once that happens also also has a knock on the fact of saying, because you're not into public tuition, you don't have to do enrollment benefits. So these are tied in that fashion. So therefore the failure of school districts to make public tuition payments due to SAS students are also excluded from dual enrollment, which is said. And then there have been some of the cases in the master of actions I mentioned earlier, have adjust this issue and have ordered that these students be given to do enrollment. So there is probably some clarification we need to make we need you might need to make sorry since that we on the dual enrollment statute to clarify that that you cannot deny. Again, you cannot deny public tuition based upon business tasks, and therefore you can't deny dual enrollment based upon religious tasks. And that is the end of our presentation. So did you know that there was a decision decision on the dual enrollment. I remember there was a lawsuit. And I thought I remembered there was a decision, but I wasn't clear since I didn't see when cited there that where they said that Vermont, but not denied your enrollment for those tuition to religious rule. of those tuition to religious rule? Yeah, that was ordered. It was AHB French. There were two court cases and there were four State Board of Administrative Actions. And at least one of those dealt with dual enrollment. Is that the state Supreme Court? The state, the Vermont courts. I don't think it's gone to the state Supreme Court yet. Other questions. That was a great presentation Senator Chinden. So I recall from the discussion last year that I made the statement and that I think you agreed with, but now I think there's some more nuance to it. If we, as the state legislature, just eliminated tuitioning and basically didn't allow students to basically force every residence in this state to have to be assigned to school district and not allow the monies, that would solve part of the problem. But on your last slide, I don't think it would fix the dual enrollment piece that is currently, when you say it's not available to approved independent school students paying private tuition. So that would not be, not that I'm advocating for it. So anybody watching, I'm not advocating to get rid of tuitioning, but just that option, that nuclear option of eliminating the tuitioning thing would not fix the concern about the possible state discrimination against private tuition dollars going to the dual enrollment piece. Am I wrong in understanding that distinction? You're correct, you're correct. So you'd have to amend that statute if you wanted to facilitate dual enrollment. Other questions? So in a way, we're in a position where, and correct me if I'm wrong here, Jim, there are really three, maybe four options. There is the do nothing, let things go as they are going until the US Supreme Court comes out with the main case decision in June, which I think, well, whatever that decision might be. The second is to consider the draft that we all kind of worked on last year, which puts some, gives some guidelines to districts around what they should be, can be doing at this point as well as put some barriers around attempts to put some barriers around how public dollars are used with religious institution, as well as gets to the anti-discrimination piece. And the third option would be to, this is one I should say that I know leadership is, has not endorsed, and it is the one that Senator Chittenden mentioned and the one that we have talked about last year. But again, this is the committee where these would be decided. If you did stop all public dollars going to any kind of private institution, no more tuitioning. In other words, you would close that option off. That would say, that would allow the state of Vermont to say, okay, no more dollars going then to religious institutions either. It would, I know there are people out there just to get everything out on the table a little bit, have talked a little bit about wanting to support that kind of proposal, which would certainly in my opinion, disrupt a lot of educational institutions and a lot of children's education at this point. It would also, if people wanted to protect the historical academies, it would require that those historical academies become public schools. In other words, and Jim and I have talked about this quite a bit, it would be the equivalent of the legislature changing them from independent categories to putting them in the category of public, which would be, what is referred to, I think in legal terms as a public taking, which is illegal. And then of course there's the guidance that we should put around for dual enrollment. Those are sort of the things that I'm, when I, in my mind need to get things summarized in my own brain, that's sort of what I'm thinking in terms of some of our options. Can I just go back to the one? Please. So in terms of taking the private schools and making them public, public takings of course happen, but usually of land, to build highways and buildings. But you're talking now about taking private businesses and that's a whole different thing. And the only case I know of is back in 2007 when AIG got taken over by the U.S. government to save the financial system, I mean, it's very unusual. And in that case too, that was an appellate in terms of the taking part of it. There was a whole issue around that. So I don't think you can just take those four academies back. I'm not sure how that could be achieved. Right, right. So in that way, I just want us to all have that just so that as we're thinking about this, there's the reality of some of these decisions. Yeah, Senator Hooker. Thank you. How many schools or how many towns are tuitioning towns? How many school districts and approximately on average, how many kids are tuitioned each year? Do we have this? I don't have those to hand, those are available. Probably best through the, no more probably. We would best to testify on that. Okay, certainly if we continue along these lines, we'll hear from Mr. Moore. So I guess one other option, Jim would be to take the draft that I have, which we'll walk through next week and divide it up. We could also say there are parts of this that we think we might want to take on and perhaps not others. So those are the options I think out there. I'm not asking for us all to take a vote today, but it's gonna be something that we're going to have to jump into next week. So as much as you can think about it before we do a walkthrough and I'll bring in and give a little testimony next week, just again to give people an additional idea, some additional ideas of what's out there and how we might proceed. But any comments, anything right now? Any thoughts on how people, what they might be interested in? Senator Chittenden in the center lines? I'll just say this, I think since you're looking for a sense of the committee as one member, I don't want public dollars, tax dollars going to schools that breed and foster hate. And so that's where my line is. And so finding that what Professor Teachout talked about a certification, any type of process that qualifies a school to meet certain standards, including the VPAA is where I think makes perfect sense. The religious aspect as well, but I think looking at the discrimination piece and having those qualifications before any public dollars can go to is a path that I would support us exploring further because I don't want my dollar, I don't want our tax dollars going to schools that foster and encourage discrimination against protected classes. Senator Lance? Well, I couldn't agree more with my colleague from Chittenden County. The other question I have is, can we go ahead with passing a bill with provisions in it regardless of where the court decision is, but add language that sort of says this provision will disappear if there's a court decision that is contrary to the legislation, is that possible or is that silly to do that? I don't think it's very relevant because that's true always, right? So if a more superior decision is made at the federal level, it's going to avoid whatever you've done anyway. Okay. For everything, for any topic that you could think of. Okay. Anything else right now? Senator Terzini? Thank you, Senator Kimme. If you were just sort of asking for a poll or opinion where we stood. I would generally say, I would keep things status quo, but increase or ramp up the process to ensure that these schools are inclusive and accept diversity and so on. So there wasn't ever, as Senator Chittenden said a little more polished than I will, but we want to make sure that every child is felt welcomed and accepted and loved and that's what schools are all about. So I'd say keep the program the way it is with some type of insurances that these tax dollars are going places where they're inclusive and accept diversity. Helpful. Senator Persley? Yeah, likewise. And I can't remember, maybe we just ran out of time last year. I can't remember why we didn't do it last year. I thought we were basically at the same position last year, but I support that and we'll see what the courts do, but I think we should lead with our values that we think this is the way it happens. The courts, especially the current makeup of the US Supreme Court might disagree, but I think we should still pass some kind of restrictions on these public dollars at religious schools. Yeah, I appreciate you bringing up where we are as it relates to last year. I think it was kind of a combination of running out of time. I had hoped to, in a way, to just give people some more thinking, some more time over the summer. It just, I think we were also waiting, I could be wrong, to hear those early arguments in the main case and that there were some other cases happening and just felt as though, since we had the time, kind of take the time. I thought it was also because you felt a little guilty of running up the score against the other committee chairs because we passed like 10 bills. Some committees have difficulty passing one or two. No, I think we really did. It was, I think you had a bunch of last minute priorities we needed to get done, related to HVAC, and so you asked for us to just hold off on everything else. Senator Chinden. If I recall the conversation and some guidance from Jim last year and an important distinction to what I think I just heard Senator Perchlick say is legislative intent is extremely important in these discussions. And for me, my legislative intent as one legislator is not to apply restrictions on religious schools. My legislative intent is to apply standard certification of ensuring that any school, any school, okay? So that's the distinction there. Any school that receives public dollars abides by the VPAA with no targeting or specificity to religion. So I don't know if that's worth saying but I remember that being a sticking point last spring. It's helpful. All these comments are really helpful. Senator Hooker, did you wanna add something? Just that I agree with that. And my only caveat is that there has to be a way of monitoring how this money is being spent. And that's the sticking point. How do you guarantee that the money is being spent correctly? Yeah, you're absolutely right. It's a great point. It's once it's sort of like if your parents give you a hundred bucks and say, just don't spend it on candy. If it goes into the whole family budget, you could, it gets mixed up. So how do, it is sort of the honor policy with this. And what we can look at is, are there ways to help people with this? So that people that again, I would think largely are gonna wanna do the right thing, can do the right thing. And if they don't, then what are the repercussions if they don't? And how do you evaluate that? Those are hard decisions and some of which could perhaps happen outside of this committee, but in rules and things like that, perhaps. Jim, do you wanna add something else? No. Beth, did you wanna add something else? The presentation was terrific. It really was great, really helpful. And I think if anybody has any questions at all, and either the Republican or Democratic caucuses around what this is about, that's a terrific presentation. And feel free to share it broadly. Great. Thank you both. Thank you. Thank you. So committee, next week, we will return to a number of topics. We'll start going through bill walkthroughs so that we hear everyone's bills and priorities. We will follow up on what's happening in our schools and with the Department of Health and how we can be helpful. We're gonna jump in a little bit to Senator Taranzini's bill on the Holocaust and we're going to also connect that or on the same day talk a little bit about civic education and some of the things that are happening out there around teaching January 6th. And we also will return to this topic and waiting. You definitely sent everybody what Senator Hardy and Representative Kornheiser believes to be a good path forward on waiting. If you haven't had a chance to look at it, please do and feel free to email me ideas or comments over the weekend. It's still, I think it's still a bit, nothing's been settled. Let me say that. So, but we, everybody's gonna have to get started. And so if anybody does have any comments on it or suggestions, just let me know. I did send you one comment. We did. Okay. The text comment or the... The text, if you would like a further comment, let me know, but I feel very strongly about what I sent. Okay, okay, good. Great, anything else? All right, hope everybody has a great weekend. Thanks for a good week back and talk to you all soon.