 Welcome back. This is the House Education Committee and on Wednesday, February 17th. And we are going to be hearing a little bit about the court action that's happened related to public dollars being used for religious schools. There are a couple of court cases that our lead counsel Jim Daymaray has been working on. And I'd like to, I'd like to welcome Jim back and we will be followed by Peter Teachout, Professor at Vermont Law School who has some possible responses. Thank you. Welcome back Jim. Nice to be here. So, just as a statement at the beginning of the expert here is Peter Teachout. Professor Teachout has an expert in this topic. I am a JV player at best. I'm going to go through some slides just to get the context for you. And then Professor Teachout will give you, I believe, some proposed solutions. And I will say that at the outset the problem set to be solved here is we've got a situation in Vermont where we've got court orders that if they're complied with, they will violate the Vermont Constitution. If they're not complied with, they will violate the US Constitution. So we're at kind of in the crosshairs of an impossible situation. And that's what we're trying to find our way through. So I'll just say that at the beginning and give you the context I think Professor Teachout will do an excellent job in talking about that, that tension right there. So let me show my screen. And my slides are here. Okay, can everybody see this? I'm assuming you can see this, yes. Can you even see it? Does it need to be just a little bit bigger? Yeah. Okay. Great. Okay, all right. Okay, so for the record, Jim Damary, let's console. We're going, we're going through this slide deck about the use of public tuition for religious schools. Also a side topic, have a subset of that topic is on dual enrollment. Let's start by looking at the US Constitution where it says the First Amendment has two religion clauses. The first is the Congress should make no law respecting and establishment of religion, as known as the establishment clause. And the second is that Congress should make no law prohibiting the free exercise of religion. So it's called the free exercise clause. So we think about the first one, establishment clause, go back to the founding of the country of the nation. The second element around that broadly is we're not going to create the Anglican church as a state sponsored church in the United States. So it goes to laws that will establish a religion or even laws that go to support a religion come up in this context. The first exercise, of course, goes to the right of individuals to exercise the religious beliefs beliefs without interference. So, these, these constitutional provisions apply to each of the states. So applies not just to the federal government and state governments. So the tension between these two provisions. The Supreme Court has recognized a play in the joints between what the establishment clause permits and the free exercise clause compels. So, on the one hand, you have a command not to establish a revision. And on the other hand, a command not to inhibit practice. For example, a law requiring the hiring by the military, a priest, minister to the troops may be viewed as a law respecting the establishment of religion is to have a state or a federal government hiring priest. So that looks like you're establishing a religion, but not making peace available may interfere with the truth free exercise of religion. So that's kind of tension we're talking about here. And what we're talking about mainly is a free exercise clause, because the establishment clause issues have pretty much gone away. Now just a minute talking about this. Before you go on to the exercise clause. So the question is, what does the establishment clause permit so how much state support can can be given to a protocol school without filing the establishment clause. And it's a court case in 2002. So it's really the modern view. Before that case, there's a lot of litigation around this question. And the court consider considered that supporting a school could violate the establishment clause because if you're giving money to a public school or a particular school, they could then use that funding for other funds for religious practice so there's a lot of case law about that years ago and lots of case law about diversion arguments, but no longer apply so today's today's law as established in this case. It's essentially that that if a government a program is neutral with respect to religion. So let's take this case here we had a budget program that about public taxpayer money to be used to support both secular and procural schools. So it was neutral because it didn't just say one or the other. So if it's neutral and decided by assistance to abroad classes and who in turn direct the aid as a result of their own independent private choice so the parents get to choose where to spend the money. Then it's not going to be something to very to challenge under the establishment clause. So, therefore, what this is saying is that if you have a mutually designed program designed to benefit both private and public school for both. Procure and secular schools and parents make the choice, you'll have a problem with the establishment clause, essentially. So we're going to move off the establishment clause is not going to be an issue but it has been issued in the past and for context, just so you know it was there at one point as an issue. Yeah, sure. Yeah, just real quickly how are religions defined. I mean, could anybody just start a religion and get money or vouchers. I can't answer that question broadly about Boston, what I will say is that in Vermont. In order to receive public funding and independent school which is what we're talking about here has to be approved by the agency of education. There has to meet certain requirements by the agency approved only approved schools can receive public funding. In Vermont, at least, wouldn't be any religious school of the only those which are approved by the agency to receive public funding. And those requirements include a number of ones around teaching and requirements there to have at least a minimal standard. That would justify using public funds. Thank you. Okay, so the real question of this deck is, what does the free exercise cause compel. And you will when mean by compel will be made obvious by this case here. It's so called playground case. And this was a grant program created by Missouri, and the program gave funding to resurface playgrounds. So it's really for safety, health and safety of kids. And, and that funding was made available to various programs that have playgrounds and a church, which operated a daycare program was denied that funding because it's a church. It's owned by church. So because of its staff as a church, Missouri said no we can't give you this this funding. And that's now was based in the Missouri Constitution, which has so called no, no a no aid clause, which I'll come on to in a minute. So what that constitution said was no money shall shall ever be taken from the public treasury directly or indirectly an aid of any church. So, Missouri, respected that provision is constitution and denied funding for resurfacing this playground owned by a church. The Supreme Court disagreed and said that that now violated the church's free exercise rights. What it says that the free exercise clause protects religious observers against unequal treatment and subjects to strict strict scrutiny laws that target me listen for special disabilities based on their staffs. So, find that principle for the court held that denying a generally available benefit solely account of religious identity poses a penalty on the free exercise of religion, it can be justified only by a state interest of the highest order. And pause there what this is saying is that if you make a benefit available generally. You can't deny that benefit to a church or or a particular school solely on the account of the fact that it's religious. That's what this is saying. And making that decision, the court talked about other case called lock. And summarize what lock said was, in that case, there's a program to provide scholarship funding. That could be used at a post secular school. But it could be used both at secular and religious schools, but couldn't be used to pursue a devotional theology degree could not be used for purposes of promoting religion basically. So it wasn't, wasn't a case of, of now providing funding based upon stats, it was based on the use of the funding saying, saying that this case basically holds that why you can tie funding public funding. Why you can require that funding be used in certain ways, we're not used in this case for this worship, or to promote theology. You can do that, but you can't describe it based upon the status of the institution. So now that we're coming to a use versus that distinction here which is very important. So, um, can describe it based on staffs, but you can conditional condition of the funding to a particular school based upon its use of that funding. We're going to go on to talk about. As soon as the case, but um, in this case here in a certain case, Gorsuch have this deep turning opinion, which basically questions online between use and staffs. I just read this because it's kind of interesting anyway says the court lease opened the possibility. A useful distinction might be drawn between laws that discriminate on the basis of the stats and religious use respectfully at Harvard doubts about the stability of such a line. So what does this man say grace before dinner, or does a man begins being able to be decision blurs in much the same way, the line between axiom missions convert insert that too long. Leaving us to ask, for example, whether the man who drowns by waiting the incoming tie there so by act coming upon the sea or mission, allowing the seeds to come upon him. And in fact, we describe both ways. So, Gorsuch is questioning this decision between use and staffs, but the court is holding that you can discriminate based on staffs, you can screen it screen it based on the use of the funding. So, this case is the espionage case. And this case by can provide tax benefits to individuals who donate money for private school scholarships for prohibited families from using the scholarships at particular schools. And this again was based in the Montana Constitution, which bars government aid may school control by any church. Again, I still call no aid provision. So based upon its strategy decision, the court held. And in this case, that the newly provisioned violates exercise class because it bars the schools from public benefit solely because of the business character of the school to based on staffs. So, that basically carried the reason of Trinity was about funding for playground with surfacing to use the public tuition. Procure schools. Again, the courts holding can't discriminate based upon staffs. Also, what's interesting about this is the court spent quite a bit of time talking about the background of these no aid provisions and state constitutions. So there was a proposed amendment to US Constitution by rain was the congressman. And that failed. But that that provision was adopted by a number of state constitutions in the 19th century. And it was provision one of history gets Catholics. So the idea of not giving aid to the schools was designed, at least in part to prevent funding going to Catholic schools. But that's hardly hardly events is a tradition is to be informed to inform them in interpreting the class. The court concluded that a state needs not subsidized private education, but once the state decides to do so, it cannot disqualify some private schools solely because they are religious. Okay. So what we know so far. At the US Supreme Court level, you can't discriminate against a school based upon its stats as a program school. But you can restrict the use of funding by a program school. So that does not go to being used for religious instruction or worship. That's what Supreme Court is as of today. The law constitution has the impulse for clocks, which says no person can be compelled to support any place of worship, contrary to the dictates of conscience. So a couple things. First of all, this is different from the no aid state constitutional provisions on our provision is based upon the use of bonds, so we can't use funds to support a place of worship. It does not not prohibit based upon stats. So most constitution in this respect is in line with where the US Supreme Court is today. And note that this provision into my constitution was probably the original constitution was not part of the lay amendments that happened in the 19th century. So the leading case we have interpreting the Vermont Constitution is sitting in town versus Department of Education from 1999. In this case, the Vermont Supreme Court held that school district violates the compel support clause that pays public tuition to a religious school in the absence of accurate safeguard against the use of such funds for religious worship or instruction. So again, going to use. I just asked a question that I just got back on. So, um, so you went back and you said, you know, the compelled clause, no deport any place of worship. What about taxpayers so our tax, well, our taxpayers compelled to support. If. Yes. So this is saying this is saying you can't use taxpayer to chitin them. Let's go to chitin them for a second. So the chitin them was school district near brand and where I live. And the parents of a student and chitin is a tuition town want to send their student to my say Joseph and Roland catholic school. Um, the Vermont Supreme Court said, okay, chitin them, you are allowed to pay tuition to want to say Joseph, as long as they're active safeguards against the use of that funding for religious instruction. So, um, so yes, it is about taxpayers in this case in terms of they're being compelled to support a religious institution to the taxpayer dollars. And this says that's okay if they're safeguards against the use of those funds for religious purposes. Thank you. So the question is, um, we shouldn't then survive espinoza. The Vermont Supreme Court, Vermont proposed for clause bars to use public funds for religious worship or instruction. In contrast to state constitutions that bar age churches based on status. But does that decision matter. So Robert. Opinions are is hising on that and Gorsuch is challenging that so while today the Vermont Constitution is in line with espinoza. So the question going forward, whether that section will hold, and whether eventually the court will just say it doesn't matter whether it's in use for staffs, you can't make based on either but today. That decision does hold. And today, we are in line with the interpretation of espinoza. And also, in terms of Vermont's Constitution again was that part of the anti Catholic me blame amendment so it's got a very different history than those ones did. Um, so do enrollment is an offshoot of this question. And some of the cases that that pressure teacher will be talking about we were doing wrong cases. And what's been happening is that since chinden was decided over 20 years ago. There's been no guidance given school districts as to what types of safeguards could be put in place to ensure that public funds aren't used for religious instruction. So in the meantime, without guidance school districts have been on their own, decide what's appropriate. And many of them have denied that funding. And the rationale they've been giving is, we can't fund you. So the record before these courts is that school districts are denying funding based on a status, even though that's not what chinden said, that's actually what's been happening in the state. We're causing problems and we're having issues in court because first, say, hey, can't do that. So we'll get on to the solution but I hit in that direction is doing something give just districts more guidance as to how to comply with that chinden decision. So certainly to do enrollment, which is a kind of as a subset question. First of all, what is it doing moment is taking a class from both high school and college at the same time. It's available to public school students to approved independent school students on public tuition and to homeschool students. It's not available by Saturday. It's not available to approve independent school students on private tuition. So whether you're attending Rice High School, which is broke all on private tuition, whether you're attending for Burton on private tuition. You can't use your moment. This is only available if you're on public tuition or if you're homeschool or you attempt public school. If you're in a non up if you your town does not operate. Yep, then you can send your your student to a approved public approved school. You would have access, if you have access to do enrollment. But if you your town operates a high school, for example, and you wanted to send your, your son or daughter to a private school. If you're doing it by choice, not as a public public school dollars, then you would not have access to it. Yeah, so so that's true. So if you're on public tuition, you have access to it. So some operating schools can tuition students out on an exceptional basis so it's unusual but for example if you are in Mulberry and your school, you go to the public operating school there, but it doesn't have a program or two that you want for your child. And you can ask the school district to pay tuition for that student so in some cases is for operating schools but usually it's for tuition districts. Okay, so we have the rice case. So we have a group of rice Memorial Heights High School students to the agency of education, faming for exercise across violations. Say that the denial of dual enrollment right students is due to their religious tasks of school. There's a ruling on the team by the federal court, and will the favor of the students holding that now was due to the school's religious tasks. The court noted that in the more than 20 years shouldn't then where society has not identified adequate safeguards to ensure public funds are not used for this instruction. So over the court noted that since at least 2010 is given education has frequently stated that public funds could not be used for students depending religious schools, a statement based on school staffs rather than use the funds so the record doesn't look good because the record would have set the system, whereby the city process in place to ensure that these funds were properly used. That wasn't done. And in the meantime, there have been denials that in the record say we're denying you based on your staffs. And that the courts have been holding that there's been a violation of the US Constitution here, and you have to provide dual enrollment to these students. Okay. So the court also said that because it's decision turns expressly on the status and not the use. And we expressed no view in this thing as to whether the Chittenden requirement of adequate safeguards could apply. Thanks to a use based restriction that survives. So the court in the right case basically side steps with Chittenden so good law. I didn't have to reach that question, because on the record, these dual enrollment applications we deny based on staffs and non use. And that's where I'm going to leave it there. I'm happy to take questions. And then I think Professor teacher will give you some further guidance in this area. So the rice case is kind of confusing. It's a, it's a case about the access to the dual enrollment benefit. Is that right. Correct. Okay, now dual enrollment isn't open to any student that's not being supported by public school dollars. So that one does not seem to be a situation of religious connection at all. Unless the students at rice are also arguing that they should be on public tuition dollars while attending rice. The issue in, I think rice was, there is a bit of a different issue than the pure use of public tuition for proper schools. That's true. But the issue of rice, the issue with the enrollment is, if you're on private tuition, whether you're rice, whether you're Burburton, you'll get dual enrollment. And I would argue that it's not discrimination based upon the staffs because it's not available to private students going to Burburton either. But the court record showed, I believe, in this case, that the denial of dual enrollment benefits for rice students by the school district was because of its staffs as a way to school. So it was looking at the record before it. And that's what it made assessment based on. So I think I have poor record basically in front of it. I have poor record because again, in 20 years it's shouldn't and we haven't done anything to give guidance school districts as to how to buy safeguards. But it would seem to me that that court record is basically in error in that if you're not being supported by public dollars, dual enrollment's not open to you regardless of what school you go to. Yeah, that that is I think a valid argument. That's not where the court went. But that's still, that still has to be heard right. That was that was second server court of appeals I believe that could be appeal further on to this new court. I'm not sure there will be. Okay. I totally struggle with that one as well. The court record is incorrect, that the reason that they were denied should have been that that it's the same for anybody who's not being supported by public dollars. Yeah. So the next thing that the next step would be the US Supreme Court. I believe so. Yeah. So the recently we had one where preliminary injunction was the second or whatever court were in second circuit court of appeals. That was a different case that has to do more with tuition dollars going to religious schools right. There've been a number of cases that could get the fewest I thought in the fall, there was a preliminary injunction. And in the rice case. So it was like in America, the student to win. And then in January of this year, they decided this is different. Okay. Yeah, you know, move to the next step. All right, thanks. Okay. So response. And the other question, excuse me represent brown. Sure. Jim, I didn't know, do you know, strategically is the state considering seeking Supreme Court review on this or is that a decision that's still under consideration. It's short between the, I'm not sure actually is against the secretary thing. Not sure where they're going with that. Representative Coopley. Just asking, did we, did we review a bill. With students living on a Vermont border attending. Schools in New York state that were not eligible for dual enrollment. Is that. Yeah, there was something. I can't remember what that was. They were attending. I think it was a bill that was introduced by Rob. Robin chestnut Tangerman. I'm a new ordering from on town attending school, a public school in New York state. Are not eligible for dual enrollment and I, I could never wrap my hands around that very well. I think they want to use the dollars in New York. I think they wanted to. Yeah, I think so. That could have been that could have been it. Just bringing that up. So, other questions on, on the case. Sorry, I'm still struggling with the decision. But that's too bad. We have this that the next step is nothing. Or the Supreme Court. That it just becomes. Something that we need to address. Thank you. Professor teach out. I think you had some. Some thoughts on what we as a legislature might do in response to this to set some guardrails. Thank you very much, madam chair. My name is Peter teach out. I teach constitutional law at Vermont law school. I sometimes testify up in the legislature. One of my areas, both state constitutional law and federal constitutional law. I'm not going to read it. I'm not going to read it. I'm not going to read it. I just add complications. So I'm going to share a few thoughts with you today. I did submit some prepared written testimony. I am not going to read it. I would like to track it in my oral testimony. Before I do that, I wonder if I could respond to representative con lens. Question about the dual enrollment program and the status of that litigation. It's not a problem of an inadequate or a false or a phony or misleading factual record before the court. The court did make specific findings. The problem is the legislation has one set of rules, but in practice, the court found this is a factual fight in practice. The school districts and the agency of education were using the religious status of schools as a surrogate. Just a simple, we're not going to allow you to participate because you are attending a religious school. That's what the court found. Because of that, the court said when it really doesn't matter that much what the legislation itself says if the practice violates our prohibition against discrimination based solely on religious status. That's a violation of the free exercise clause. So I don't think it's likely that will be appealed to the Supreme Court or will be heard by the Supreme Court. It's not possible, but I think probably that factual finding would be dispositive in any case the practice violates the free exercise clause, not necessarily the law. So that can be corrected. But it needs to be corrected. Anyway, that we've got both dual enrollment up there and tuition reimbursement program and I would like to focus in my own testimony if you've been willing to focus on the tuition reimbursement case because there was a second circuit appellate court decision in January of this year in joining school districts in Vermont from continuing to refuse to provide tuition reimbursement to students attending what we are calling parochial schools, any religious school based solely on the religious status of the school. There again, the problem has been not so much what the Constitution provides, what the legislation provides, it has been the practice. And there again, the practice has been simply, hey, if you are a religious school, we are not going to provide tuition reimburse reimbursement to you, no matter what you do with the money, simply based on the religious status of the school and that can be counter to the espinoza case. Okay. So my instinct is to sort of just, is there some way to on the one hand comply with the court orders in this case comply with the requirements of the espinoza case that Jim described accurately to you, and at the same time to violate the Vermont constitutional prohibition in the compelled support clause, which is a prohibition against requiring Vermont taxpayers to support with their tax dollars religious instruction, religious worship, the propagation of religious views with which people may disagree. It's impossible to do so and in my testimony, I think I can pull it up. I don't know how, whether this is helpful to you or not. I'm going to try anyway. I have now screwed things up here I've got launch meeting again I don't know what you're you're good it's showing and we can access it. It's if you refresh our website. You'll see that it's also available. Refresh your website do I go down to join the zoom meeting again. You're, you're, you're doing fine. We can see the document that you're doing and if it's too small or too difficult for people to for our members to see they can just go to the website. I can't see it on my screen but I know. Tell me a simple button to press. Okay, and tell me why don't we have Jesse do it. Or Jesse can you help. I certainly can I have it ready right here. Okay. Take the screen back and we'll check. Jesse can you get my screen back. There we go. There we go. Okay, great. Okay. Okay, look, I am going to try to be helpful but I also am going to complicate your lives. I was asked on short notice to testify on this a couple weeks ago before Senate Education Committee and I did the best I could. I came up with what I thought was a pretty sensible Vermont solution. But since then I've done some additional research and it's gotten a little bit more complicated so let me just tell you I'm going to make three passes through fairly briefly. And I'm going to ask what can we do as a state to comply with the court borders in joining us, not to continue to discriminate against religious schools, simply or solely based on their religious status, and at the same time, not violate the Vermont Constitution and the compelled support clause in the Constitution. Another example of complication is that comes from another decision that the United States Supreme Court handed down just this past year. It's a case called Our Lady of Guadalupe. And in that case, the court held that religious institutions, including private religious schools are not bound by federal or state anti discrimination laws. We only have a discrimination based on age on basis of disability on basis of gender on basis of sexual preference. Those laws cannot be applied to religious schools because of something called the ministerial exception. Why is that a complication, because it means that not only if we provide taxpayer support to religious schools, not only would we be violating the compelled support clause. But we also would be providing taxpayer support to institutions that have policies or may have policies that are directly in contradiction to the commitments and values that are reflected in our anti discrimination laws. So that's the second level. And then finally, my final pass through was a very important case that was decided by the first circuit that's down in Boston. We're in the second circuit, but it is related it was decided by a panel of three circuit court judges, including interestingly, the retired Chief Justice of the Supreme Court David Souter. And he was a member of this panel. So the decision has particular weight. Why is it significant, because that court held that a main tuition reimbursement program that is very, very similar to Vermont's tuition reimbursement program did not violate the free exercise clause and found a number of reasons for distinguishing the espinoza case, saying that it really did not operate there so that we got some lessons to learn from all these three cases. I will tell you if we were sitting here six months ago none of this stuff would have been decided so we're dealing with very recent decisions both at the federal level, and at the state level. So I think I've described and Jim I think does a good job of describing the problem. Now Jesse is running this show so I don't know how to move this. There we go. We can just jump all the way there's the okay okay. I've identified sort of the two major dimensions of the problem. Jesse if you could keep on going down further until we get to sort of the next section. So, stop right there. So, how do we. What, what steps do we need to take to comply with federal court injunction to bring our policy into line with the espinoza decision. At the same time, not violate the compelled support clause of the Vermont Constitution. I think this would do it. It would be just to have school districts adopt this policy which I set out there. It is the policy of this school district to authorize payment of monthly requests for reimbursement of tuition from all independent schools, regardless of religious status or tuition. Get that right out there. Upon receipt of certification that none of the tuition for which reimbursement is requested has been, or will be used to support religious instruction worship or other religious activity, or the propagation of religious views. It's really important that school districts who have as a matter of practice, been denying reimbursement of tuition to religious schools on the basis of their religious status, make clear that they're not going to be doing it on the basis of religious status anymore. They will authorize payment, if though, any independent school certifies that none of the tuition they're requesting will be used for religious instruction or worse. Okay. So, pretty simple Vermont solution I think there may be problems with it, but it does the work. Jesse if you could continue to move down a little bit. Vermont policy into line with the federal court decisions, all they say is you must stop denying religious, excuse me, you must stop denying tuition support on the basis of religious status solely on the basis. It would bring us into line with those decisions. It would bring us into line with the espinoza case because we'd no longer be denying tuition reimbursement support based solely on religious status. At the same time, we would make sure that the funds that we were providing we're not being used for purposes of religious worship or instruction, because if we, if they were being used that way, it would violate the Vermont Constitution and the federal support provision. I don't know where we are on this diagram. I think we got to go back up a little bit, Jesse. Yeah. Okay. Okay, well right there. Yeah. Okay. I think the question would be, if we go back up and take a look at that very simple language of the policy right there, whether this certification requirement does the kind of work that needs to be done. The Vermont Supreme Court in the town of Chittenden case, as Jim indicated, said, no problem with providing state aid to religious schools. You just have to ensure that there are safeguards in place to ensure that those funds will not be used for religious instruction and worship. How do you do that? You simply say you'll get the tuition reimbursement money if you certify that that tuition will not be used to support religious instruction or worship. If you could go down a little bit, Jesse. I don't know how the Vermont Supreme Court would respond if it was asked, well, is that an adequate safeguard, the certification requirement? But what I can tell you, keep on going down just a little bit more, Jesse, that this United States Supreme Court in a case called Mitchell versus Helms has given its stamp of approval to this approach. This was a case where state and federal governments were providing educational equipment to private schools, including private religious schools. The only safeguard against abuse was a certification requirement like this one. And the court found that that certification requirement did provide adequate safeguards against possible abuse. If you've got that case out there, I'm just sort of in my proposal trying to replicate what the Supreme Court has already given a stamp of approval to in saying certification requirements like this do provide sufficient safeguards against government aid being used for purposes of religious worship or instruction. Jesse, go down just a little bit more. I've got, I quote from Justice O'Connor. There it is. Okay. This is right there in Justice O'Connor's concurrence. Justice Breyer joined in it. It's the court said at the state level, the program requires all non-public schools to submit signed assurances. They will use the aid only to supplement, not to supplant federal funds, non-federal funds and that the instructional materials and equipment will only be used for secular, neutral, and non-ideological purposes. Now, in my proposal, I put it negatively, will not be used for purposes of religious worship or instruction, but you could put it positively too, will only be used for secular, neutral, certify it one way or the other. I don't care. They both do the same work as far as I'm concerned. So continue on just a little bit more down, Jesse, please. Okay. I have to say I have some reservations about the state getting into the business of trying to identify particular items in a school's budget, which might be eligible for reimbursement, other items that wouldn't be eligible for reimbursement. I don't think it's workable. I don't think, I think it'll raise some, what they call entanglement problems that we ought to try to stay away from. The nice thing about the certification approach is it's very practical and simple and workable. So that's why I suggest it here. In any event, that's just a, you know, a kind of simple Vermont practical solution that will allow us to satisfy both, both the federal constitutional requirements and the state constitutional requirements. I see a question from Senator Boston. Yes, I'm wondering, could the agency, you know, mandate that let's say science instruction be based on science, so you would have to teach evolution as opposed to creation. Wouldn't that be teaching religion. Well, the court has in fact held that teaching, what is it called something of creationism. It's a form of impermissible establishment of religion. You just don't want the agency of education getting into sort of well this would qualify but that wouldn't qualify this is secular. No, that's sectarian. It's a little touch of sectarianism. I just think a simple straightforward. Hey look, either you certify, or you don't. If you certify, you're eligible for the tuition reimbursement payments. If you can't certify, you're not eligible. Is it going to be challenged sure, but there's nothing in the existing case law out there that says the state cannot do that. Representative Brown, excuse me. Oh, thank you chair web. So Professor teach out in going back to the certification solution to the to the current legal problem. So you're suggesting that the state wouldn't really have much if any of a role in looking beyond the face of the certificate in terms of, you know, digging into accounting practices or anything like that. That's a good question. And my sense is that if the state started getting into that. It would really get into what I call entanglement issues, which is to say the states making decisions about what is religious instruction and what is not religious instruction. It's a neat way to do so but I just can't see it. That's why I think you got to go simple with just you certify, we're going to trust you. If it turns out you're using state money. On a day to day basis to teach religion courses to conduct prayers or whatever, then we will stop you will lose your eligibility. I wish there was another way to do it, but I don't, I don't, I think once you move away from a very simple certification requirement, the state's going to be in trouble. In your research, you know, are there other states in the country that are using this kind of certification approach in regards specifically to tuition. I don't know that. I would look, I haven't had a chance to look that up but that would be interesting. Thanks. Thank you. Thank you, Professor teach out this is so interesting. So on the certification process, I guess my question is similar to to rep Browns. If there were a parochial school that was accepting voucher money, and they conducted vespers in the afternoon and had a. I don't know like a catechism class that was required as part of their curriculum. I guess I just don't get how it works. Do they have to stop doing that, or do they certify. And then if they're ever challenged in court they provide accounting that says well actually we use that voucher money for Jim and lunch. You try to imagine yourself representing a parochial school what do we do in that case. Okay. And I think it would be. I think you'd have to say, if religion pervades our educational program we just can't certify that we might be able to segregate the religious aspects of our program put them at a special time of day involving special in which case we would just deduct the amount of money we're spending on that segregated part of the program from the tuition we're requesting. And the tuition we're requesting is just for straight up sort of secular education you get in any public school in the state. You could do that, I think it's possible but I think for most. In fact for rice and probably any other parochial school any other religious school that would be very difficult to certify. So, you're basically saying if you can't certify, you're not going to be eligible for those tuition funds because we need to be sure that taxpayer money is not being used for purposes of religious instruction or proselytization. If somebody can come up with a better way of doing it. I'm happy to, I'm happy to explore the possibilities but I just don't see any other way to ensure that those taxpayer funds will not be used for the purposes of religious worship and instruction. So the this, this solution satisfies both the US and Vermont Constitution and then really just puts it on the schools to say certifier don't. Yeah, and the only thing I can, I can say representative James is that this is an approach that was given a stamp of approval, a simple certification in that Mitchell versus Helms case. It was also a similar mechanism was used in a case called the Agostini case, which involved, and this is really important, bringing special needs teachers onto the campus of parochial schools. Which allows the kids to be mainstream, subject to a certification that those special needs teachers would not engage in any form of religious indoctrination or worship or participate in the sort of the religious aspects of it was again approved in that context. So it's got some presidential approval, but whether it would stand challenge in this area. Who knows. This actually gets to one of one of my issues which is, you know, our public schools are required to take all students, regardless of disability. And in addition our public schools are basically meant to be designed to be very diverse and have students of a broad income background that that's that's the American melting pot, and the concern that is taking dollars off of public education and putting them into independent schools is always a concern. What I'm wondering is if there's a way to address, and this is for all of our independent schools, not just the ones that are religious. At 173 census based funding group right now is working on rules for independent schools related to special education. And is there a way. Do we, if we can we require that public dollars go to schools that serve all students of all needs. And I think that's a good question. I have to confess that I was chair of a, of a board of trustees of a little independent school down in this area, all the Sharon Academy for about five years. I got the position because before that I was chair of a public school board for about five. But anyway, I have great respect for the work that independent schools do. So they struggle with providing special needs kids with the kind of services the full range of services they need. I think it's the state clearly has authority to say if you can't provide the level of special education needs that we think you can provide. You are not going to be eligible for any kind of tuition support any other sort of state aid. And that's my answer. I just think it's good that the state generally has modified in some respects that kind of demands you have for the range and extent of special needs support that some of the independent schools have to provide, but they ought to be providing doing fair share to the extent we've got the resource to do so. Representative Conlon and then Harrison. Sort of along those same lines about, you know, in this case, Kate is talking about discriminating against special needs kids you had talked earlier about that religious schools can't be compelled to have anti discrimination policies. But but can the district that is funding the student have a policy that says no tax dollars going to schools that don't have anti discrimination policies. Excellent question I dress that in the next part of my testimony. Until this year, we did not know as a constant matter of constitutional law that private religious schools could exempt their employees their firing and hiring decisions decisions about controlling employees from the ordinary application of federal and state anti discrimination law. But this case that was decided by the Supreme Court last summer called our Lady of Guadalupe, the court carved out a broad spectrum for private religious schools to claim exemption from the application of anti discrimination laws that apply to everybody else. It's called the ministerial exception. I think we have to adjust our policy to respond to that decision by and what I suggest in my testimony again it's sort of simple Vermont work but I suggest why don't we just add a provision us another certification provision. Now we got to recertify that we comply fully with state anti discrimination laws federal anti discrimination laws, and that none of the money that we get will be used for purposes of religious literature instruction. That's my suggestion. I think Jim may disagree with me but I think the state has got the worry to require that schools receiving taxpayer money by with our anti discrimination laws and policies. Jim, you may disagree with that. I was fine with that previous. Yeah. You buy and I show my screen for a second again. Say what. Yes. Yeah. Yes, Jim you're all set now. Okay, hold on. I just want to let you know it's happy. I'm a sense side. Because it's directly relevant to what we're talking about. So I've dropped in this bill on the center side to incorporate what Professor teacher recommends. Do it in detail. But basically, Oh, my things about what we talked about, but the heart of it says that in order to this can't pay tuition to independent schools on unless we receive certification, so it's here. So the certification requirements here and that goes on to basically give an exception saying that it's okay to have an overview course in religion. So the certification is here but what's controversial about this is what's here. I think which is she says the school district shall not pay tuition on to any of the schools and programs, regardless of religion status or affiliation unless the school program complies with all federal and state discrimination laws applicable to public schools. And that there is the issue that first the teacher mentions, which is the minister of exception for for criminal law, so that you can discriminate against employees. You're even in school under that case. There is public accommodation law laws in Vermont. So place of public accommodation is not allowed to discriminate, but that requires that condition upon them being open to the general public. I don't know how it applies to private schools and whether they can discriminate because they don't invite the general public in to the number of issues around what what anti discrimination laws currently apply to private schools. And what what could be applied to them. So I just want to mention that on Friday this week afternoon in the same we've got this language being discussed. We've got lawyers from our office and also human rights commissions coming in. The attorney general general civil rights students coming in, and the ACLU is coming in. Talk about this very topic about what can can't be done here to apply these anti discrimination laws to private schools. And lastly I'll mention that under act one 73, you have already applied the special education laws to independent schools beginning in 2023. So you've already done that. The question now is whether you want, whether you can go further and want to go further and applying all anti discrimination laws to private schools. So Jim, Jim, I think this guy's absolutely brilliant. You see, he stole all my best thoughts, and probably did a better job than I do. Exactly what I'm proposed look the state can't require after this Supreme Court decision can't require private religious schools to comply with state or federal anti discrimination laws in hiring and firing decisions and regulating the conduct of its employees. But that is quite different from saying the Constitution requires the state to subsidize schools who don't comply with federal and state anti discrimination laws. It's a very different you can interfere with those decisions but that doesn't mean state taxpayers have to support schools that are unwilling to comply with our anti discrimination two different issues. That's my reaction. It's fair to say that if a school certifies as proposed in this bill, they have to live under the constant fear that somebody will challenge that certification in court in other words it doesn't necessarily fall to the agency education to inspect what they're doing, but they filter themselves up to a lawsuit from anybody who has evidence that they're using the money for, you know, for religious purposes. That's true. That's true. Nothing wrong with living in fear. No, they would be. Yeah. Yeah. My view is that schools like rice, Mount St. Joseph's better remember, Pat Lee went to St. Michael's he's not he didn't turn out too badly as a consequence. I think these schools aren't doing too much harm out there. Most of the, I think they're all generally going to operate in good faith. But if they blatantly take the money and then engage in anti discrimination, excuse me and discriminatory practices. I think we the state would be within its limits then to withhold any further funding. Time for one more question. Representative Harrison, unmute. I do it all the time. Not so much a question as a comment. My daughter went to a K eight Catholic school were not Catholic, but I can say on equivocally that the Catholic doctrine permeated every class every day. And I think what we're looking at for a possible bill would be something that a school could not possibly honestly adhere to. And maybe that's our intent. I mean, that might be true, but schools have a number of capital needs, right. Construction needs, maintenance needs, operational needs. So I can imagine a school saying we're going to put this public money into our capital fund to build playgrounds and buildings and so there might be ways in which it's not so hard for these schools to fly. So I'm just throwing that out there that I can see avenues here for compliance. So the bill that that's being addressed in the Senate, we also have one on our wall introduced by representative boroughs I believe that's addressing part of this issue, whether we were able to get to it this year or not. After seeing how complicated things gotten on the floor. It may be something with that. We'll be able to address next year, unless unless the Senate passes something over this year. If I could respond very briefly to representative era songs comment, I agree completely. It's so interesting if you read the court's decision. And this, our lady of what a loop a case the anti discrimination. You will find the court going on and on about the extent to which ordinary employees in a private religious school, engage on a day to day basis. Not only in providing religious instruction, but in modeling the faith that the schools is the schools mission. So it is pervasive and the court recognizes it of course it recognize that in that case in order to insulate decisions regarding those employees from discrimination of the anti discrimination laws, but you can flip that on its head, and say if that's true, schools like that are not to be receiving taxpayer support for their programs because that is subsidizing discriminatory practices that run counter to some of our deepest commitments and values. Thank you. This is has been really, really helpful. I appreciate this. I know that we are probably all open to question from our constituents not so much running in the store as it used to be. But it's very helpful to have this background. It's clear that as things progress that we are very likely going to need to be addressing this issue. If I could say in conclusion, I think it's important that the committee keep in mind we've been talking about broken schools. That's been our experience in Vermont. But if you look nationally, you will find that there are lots of different types of religious schools. There are Islamic schools, there are Jewish religious schools. There are evangelical Christian schools. Most of them really have and pursue values that we all share, but there certainly are aspects of every religious belief that may run counter to the values that we share and as part of our constitutional tradition and so we just need to be. We're dealing with broken schools in this context, but whatever policy the state adopts and implements needs to respond to the reality that we may see in Vermont. Sooner or later, other types of religious schools that I've mentioned. It's been most helpful. I think to speak for the committee that we really appreciated this conversation. Thank you, Jim, for your work on this and to Professor Teachouts. What's next week's topic with our lawyers. We have this lecture every week. Thanks a lot. And just let me know if I can be helpful. I'm sure if I went on a little bit too long, but let me know if I can be helpful. Thank you. It was very interesting. We appreciated it. So we are going to break.