March 2, 2023
Peter Teachout (Vermont Law School) on Carson v Makin
-Area of specialty: state and federal constitutional law
-Vermont’s tuition reimbursement is very similar to the one that got challenged in the Supreme Court (Carson v Makin)
-General approach adopted by Vermont’s H258 is probably constitutionally sound- a court would not strike it down
-However, the state likely has flexibility in determining which private schools (if any) are eligible for tuition reimbursement
-Carson v Makin background
-Arose when parents challenged constitutionality of Maine’s tuition reimbursement system (identical to vermont’s)
-Half of Maine school districts do not have public secondary schools due to the state’s rural nature, very similar to Vermont.
-Maine law gave school districts two options: districts w/o public schools of their own could designate public schools in another district or a private school for students in their area.
-School districts were required to provide tuition reimbursement to parents who had free choice to select any private or public school, provided that the school was an approved private school determined by Maine Dept. of Education).
-Parents in rural districts had a wide range of options for in and out of state school options.
-Under Maine law, parents could send their students to a religious school if curriculum was basically secular. One restriction; tuition reimbursement would not be available if school was sectarian
-Some parents requested tuition reimbursement for “pervasively religious” schools. One school taught homosexuality was evil, another had heavily anti Islam teachings. They were not able to be reimbursed through state system
-Supreme Court involvement
-In June 2022, the Supreme Court agreed with parents that Maine denying reimbursement for religious schools went against their first amendment rights.
-States don’t have to subsidize private schools at all, but if they do, they cannot exclude some schools/parents based solely on religious belief.
-Relation to Vermont’s system
-Vermont’s tuition reimbursement is “carbon copy” of Maine’s
-One key difference: a provision in state constitution (Article 3 of Ch 1) prohibits state from using state taxpayer dollars for purposes of religious worship/instruction
-There have been a number of concerns re: Vermont’s current structure, so there are several reasons to reexamine tuition reimbursement
-Vermont’s bill
-Proposes that VT will continue to use current model (where parents can select public or a limited number of private schools and be reimbursed).
-Eligible schools MUST make 3 of the 4 specific criteria (*these criteria were not explained by Teachout*). Through these new criteria, only four private schools will continue to be reimbursed: St Johnsbury Academy, Lyndon Institute, Burr and Burton, Thetford Academy.
-Private school choice would be radically reduced. However, it would not violate the Maine case OR Vermont constitution.
-The criteria for determining who would be excluded is not based SOLELY on religious belief. H258 is not about religious belief.
-Most of the criteria employed in proposed legislation give the state significant flexibility, as long as they stay away from making determinations based on religious grounds.
-Legislation also includes a transition period: if you already have a child in school that is receiving tuition reimbursement, that child will get reimbursement until they graduate. Schools have 5 years. Also funding for schools to convert.
Questions/comments for Peter Teachout
-Question from Rep. Terri Williams: Was Act 173 intended to alleviate some of the discrimination issues?
-Answer: Under rules adopted by Board of Ed, schools are not eligible for reimbursement if they discriminate in violation of state and federal anti discrimination laws.
-Schools have “ministerial exception”- they don’t have to comply with anti discrimination laws if those laws go against their religious beliefs.
-Whether this applies to students and staff is still under consideration.
-Some precedent in landmark Philadelphia case
-Philadelphia cut off funding for the city’s largest Catholic foster/adoption agency, court sided with a Catholic adoption/foster agency who would not place children with same sex couples.
-Can’t deny approval, but do you have to provide state funded support? Court has not decided in this context.
-Rep Sarita. Austin:
-Everyone should watch this testimony from Jeannie Collins to the Education Committee about the financial impact of taking public dollars and putting them in private schools.
-Comment from Rep. Buss: There is concern in the Education Committee re: transparency between private and public institutions.
-A public school is responsible for every child. Public schools work to get funding, negotiate on behalf of special ed students, but ultimately get none of the funding.
-Another concern: when we “tuition out”- if a school is trying to meet its budget, it cannot cut those tuition reimbursement dollars, so that money ends up being cut from public k-8.
Question: Secular schools will also be affected by new designation standards. We need to stop discriminatory schools from being funded, but is there a way to change the law so that these secular independent schools are not hurt?
Answer: Look for ways to redefine eligibility criteria that would survive constitutional challenge- just not religious criteria.
Senator White on S.5:
-2 Handouts: ean report and overview on affordable heat act
-Clean heat standard from last legislative session is similar
-Two fold issue in Vermont with clean heat
-Struggling with fuel prices and Vermotners ability to heat their homes. Over 70% of Vermonters heat with liquid fuel. Price spike from anywhere 2-3 dollars per gallon.
-Gap in services, where Vermonters struggling with current fuel prices cannot afford to be a part of clean energy transition
-Climate council has looked at Global Warming Solutions Act requirements, and how to do this equitably
-Performance standard is not new conceptually: it is a tradeable credit market. The bill itself is meant to bring along fuel dealers into transition
-Constituents wanted eligible measures addressed: what can customers do to meet these requirements? Cold climate heat pumps, bio fuels, weatherization, etc
-Learning that not all fuel alternatives are created equal.
-Some of these methods do not decrease carbon output over time.
-In EAN report (handout), carbon intensity for each fuel type is explained.
-Equity Advisory Group
-In this version of the bill, the Equity Advisory Group was created
-Working to address needs of low and moderate income Vermonters.
-Wealthy Vermonters can transition off of liquid fuel, but not the people who are most hurt by the price spikes.
-Rule making process
-Doesn’t do anything until 2 years down the line.
-Appropriations Committee on Senate side has put in “checkback” language.
-Nothing is implemented until there is a full return to legislative body
-4 checkback reports in bills originally: getting updates in the legislature regularly. -Amendment from appropriations committee doesn’t add an additional report, just requires it to come back to the legislature in two years
-Asking for it to be implemented in 2026, but open to compromise
-Rep. Monique Priestley has sent out section by section review of bill
Questions/comments re: S5
-Question: Is there any relief for fuel oil dealers, who do not install clean heat? They don’t control prices, we don’t want to put them out of business.
-Answer: An “obligated party” will not be your local fuel dealer- it would be a larger corporation IN MOST CASES.
-Smaller dealers who do not do installments make up ⅕ of fuel dealers, ⅗ of fuel dealers do installments, and another ⅕ will be starting to do installations in the next few years, transitioning over.
-Protections that they have: getting a designated delivery agent who can be a weatherization agency, Efficiency Vermont, etc.
-Creates an incentivized biofuel market. An opportunity for very small fuel dealers is a new market that they haven’t been able to participate in.
-Question: Are out-of-state fuel companies part of this (New Hampshire)?
-Answer: Yes! State’s Attorney General helped advise on interstate commerce.
-Question from Rep. Simms: Hearing from a lot of people in the community that they care about reducing their impact. People are worried about resiliency and adaptation: power going out, how to stay warm, bridges washing out, extreme weather events. How do I answer to constituents who want know why we’re putting so much money/effort into this and not into more immediate action around climate change?
Answer: We’re doing both. There have been massive investments in the grid and land use. This would also give us steady stream long term revenue, which would help us address other climate change related needs. We need a consistent way to fund thermal investments. We have one of the cleanest and most stable electric grids in new england
[Submitted by VCRD Staff]