Plain Language Baffles Supreme Court

On June 11 the Vermont Supreme Court, 455 days after oral argument, finally issued an opinion in the Chittenden school tuition case. (By comparison, the Court produced its sweeping constitutional decision in Brigham only 51 days after oral argument.) Unlike in Brigham, where the Court invented a new right out of thin air, in Chittenden the Court stared at the plain language of the Vermont Constitution and couldn't understand what it said. The Chittenden case arose when the town voted to pay tuition for 13 children at the Catholic Mt. St. Joseph Academy in nearby Rutland. The Court's holding, concisely stated, is this: Article 3 of the Vermont Constitution provides that "no person... can be compelled to.. support any place of worship." Religious instruction in an elementary or secondary school is religious worship. A town's payment of tax dollars as tuition to a religious school, with no restrictions on such payments to prevent them from being used for religious instruction, is prohibited by Article 3.

The Court of What's Happenin' Now, as it customarily does, solemnly declared that the plain words of the Constitution and the associated acts and statements of its authors are not enough to make clear what a provision ought to mean for us today. Then the Court proceeded to wander off from the plain language of Article 3. The plain language is "No person can be compelled to support a place of worship." The central meaning, amply attested to in contemporary history, is that "no person can be compelled to support a place of worship." Even though there were no religious schools in 1786, let's concede, for purpose of argument, that public tax dollars used to pay for pervasively sectarian secondary education is legally identical to paying to "support a place of worship". The key language of Article 3 is "No person shall be compelled." As the Court notes, an 1801 Vermont law providing for support of ministers recognized this problem. It authorized a taxpayer to opt out of paying for churches and ministers if the taxpayer found their teachings to be repugnant to his conscience. The Court notes with approval that even this exemption drew criticism from the Council of Censors, and the Ministerial Act was soon repealed. But a perusal of the actual Council of Censors report of 1806 yields no coherent argument as to why the Ministerial Act violated Article 3. Instead, the Council rested its case on consequences, namely, that the act "engendered ill will", presumably directed by those willing to support churches against those who wanted their money back. This Court, however, grasps whatever reed may be available to make its point.

A plain reading of Article 3 would conclude that, as the Article says, "No person can be compelled to support a place of worship (or a religious school)". As the Court has often stated, the provisions of the Bill of Rights are self executing, unless they have something to do with protecting property rights, in which case they are not. Taxpayers aggrieved by the use of their tax dollars to pay tuition for children attending faith based schools chosen by their parents in tuition towns which have voted to authorize it, could simply be given a discount, upon request, to relieve them of paying the disputed amount. In the Chittenden case, $39,000 was budgeted to pay tuition for 13 children to Mt. St. Joseph's Academy for school year 1996-97. The property taxes collected by the town for education that year were $1,417,607, from about 700 property tax payers. The MSJ tuitions would have made up 2.7% of the education tax bill.

What fraction of the taxpayers would actually take a stand on the constitutional "compelled support" clause to demand a discount? If half demanded a discount, the available tuitions for MSJ would be reduced from $3000 to $1500. Some parents would not be able to afford the $1500 difference, and would switch their children to Rutland High School (tuition: $6672). If ten of the 13 did so, the town's tuition bill would increase from $39,000 (13 to MSJ) to $71,220 (10 to RHS, 3 to MSJ at $1500). Though illustrative, this is now an unreal exercise, since Act 60 has superseded the Foundation plan. It does, however, suggest that under such a "discount to prevent compelled support" arrangement, few taxpayers not associated with the public schools, the teachers union, or the ACLU would bother to request a small discount.

Admittedly, the Chittenden case did not come before the Court as an action by an aggrieved taxpayer compelled to support religion against his will. It came as an "establishment of religion" case between town and state, and was decided by the Court as a "compelled support" case. But in any case the 2000 legislature, given the political will, could easily counter the ruling. The most obvious remedy (there are others) would be for the legislature to explicitly allow tuition towns to pay tuition to faith-based independent schools, and let those taxpayers who object to a small fraction of their state property taxes being used for that purpose take a discount or obtain a refund. That's exactly what Article 3 contemplated. Such a bill would of course face fierce resistance from the public educational establishment. Their interest is not so much protecting the rights of dissenters, as preventing Vermont parents from choosing the kind of education that seems to them best suited for their children.

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June 1999