Timeline of How Vermont Has Treated Religious Schools

Editor's Note: A Christian school in Vermont asked a federal appeals court earlier this week to let its sports teams play other teams in the state without jettisoning its belief that girls shouldn't compete against males.Below is a timeline showing how Vermont has dealt with religious schools over time.. 1869Vermont Legislature enacts Act 9, which allows “any school district in this State” to make “any arrangement or agreement” with “any academy” – meaning a public school district can use public money to pay tuition to a private school for students who live in the school district. The statute doesn’t mention religion. It’s the beginning of what in Vermont is known as the Town Tuitioning Program. 1961Vermont Supreme Court rules that it violates the Establishment Clause of the First Amendment of the U.S. Constitution to have a public school district reimburse tuition at a religious school, in Swart v. South Burlington Town School District.C. Raymond Swart, a supervisor at a General Electric plant and a South Burlington resident, filed a lawsuit in state superior court in February 1958 to try to keep public funds from going to nearby Catholic schools (according to the December 1, 1959 issue of The St. Albans Messenger). 1987Mid Vermont Christian School is founded with five students in the basement of Woodstock Baptist Fellowship in West Woodstock, Vermont 1991Vermont Supreme Court overturns its 1961 ruling in Swart, ruling instead that having a public school district reimburse tuition for a religious school doesn’t violate the Establishment Clause of the First Amendment of the U.S. Constitution (in Campbell v. Manchester Board School of Directors, citing the three-part Lemon test in the 1971 U.S. Supreme Court case Lemon v. Kurtzman) June 1999Mid Vermont Christian School begins construction at new 15-acre site in Quechee, Vermont that the school acquired in 1991 (according to The Windsor Chronicle, Thursday, June 17, 1999, page 1) June 1999Vermont Supreme Court rules that public school districts can’t pay tuition for students at religious schools, citing the Vermont Constitution’s prohibition on compelling anyone to “support any place of worship” (Article 3).The case is Chittenden Town School District v. Vermont Department of Education.The Chittenden School Board had started paying tuition for certain students to attend Mount Saint Joseph Academy in Rutland, which the state supreme court calls in its decision “a very good high school,” in 1996. The Vermont commissioner of education stopped the practice, and the local school board sued to try to restore it, but lost the appeal. May 2007Governor Jim Douglas, a Republican, signs into law a bill passed by the Vermont Legislature that adds gender identity to the state’s list of classes protected from discrimination as part of the state’s public accommodations law (according to the May 25, 2007 edition of The Burlington Free Press, page 21) February 2017Vermont Agency of Education publishes revised version of a policy called “Best Practices for School Regarding Transgender and Gender Nonconforming Students,” which among other things allows students to use bathrooms and locker rooms based on their gender identity rather than their sex and allows school officials not to inform parents if a student is gender transitioning at school January 2019Two Catholic school students, their parents, and the Roman Catholic Diocese of Burlington file a federal lawsuit against the secretary of the Vermont Agency of Education, claiming the state is violating the free exercise of religion by barring local public school districts from paying tuition to Catholic schools. The case is In re: A.H.. February 2021U.S. Court of Appeals for the Second Circuit orders state of Vermont to enable public school districts that don’t have a public high school to pay tuition to religious schools if students in the district want to attend them (in In re: A.H.), finding that the Establishment Clause of the First Amendment of the U.S. Constitution, “does not require Vermont to avoid funding religious education through the TTP,” meaning the Town Tuition Program. June 2022U.S. Supreme Court rules in Carson v. Makin that Maine law prohibiting local school districts that don’t provide public high schools from paying tuition to religious schools violates the free-exercise-of-religion clause of the First Amendment of the U.S. Constitution. The ruling affects Vermont and any other states with similar situations where states allow local public school districts to pay tuition to private schools. September 2022Vermont secretary of education starts allowing public school districts to pay tuition to religious schools, in accord with the U.S. Supreme Court decision Carson v. Makin, as long as the religious schools meet certain state standards January 2023Mid Vermont Christian School signs Vermont Agency of Education’s application form seeking approved independent school status (“Addendum for Independent School Applications – 2022”), which states that the school must comply with the Vermont Public Accommodations Act – but adds language at the bottom stating that the school will not abide by requirements that “conflict with any of the school's beliefs, including on marriage and sexuality,” and that “nor can it affirm that particular aspect of the Vermont Public Accommodations Act.”State education officials say Mid Vermont Christian must return the signed form with no caveats, and without it they refuse to grant Mid Vermont Christian “approved independent school” status that would enable the school to receive tuition from local public school districts. The denial also prevents students at the school from taking advantage of a state program that allows high school students to take a limited number of college courses at the public school district’s expense, which is known as the Dual Enrollment Program. February 16, 2023Mid Vermont Christian School asks Vermont Principals’ Association to not allow a male on the girls basketball team of The Long Trail School to play if the two teams meet each other in the state tournament, saying girls on the Mid Vermont Christian team are “extremely uncomfortable playing a contact sport with a member of the opposite sex both for reasons of safety and the overall uncomfortableness of the proximity and contact necessary to play this sport to its fullest" February 21, 2023The state girls basketball tournament draw features 12 seed Mid Vermont Christian School playing 5 seed Long Trail School (according that day’s issue of The Burlington Free Press), which has a 6-foot-1-inch-tall male who identifies as a girl. Mid Vermont Christian refuses to play. Game declared a forfeit.“We believe playing against an opponent with a biological male jeopardizes the fairness of the game and the safety of our players. Allowing biological males to participate in women’s sports sets a bad precedent for the future of women’s sports in general,” the head of Mid Vermont Christian School, Vicky Fogg, told the Valley News by email, according to VtDigger.org. February 22, 2023Jay Nichols, executive director of the Vermont Principals’ Association, provides written testimony to the Vermont House of Representatives’ Education Committee criticizing the behavior of religious schools in the state. He laments the U.S. Supreme Court decision Carson v. Makin, which he says “has put us in a box that essentially has us look away from the common decency of all students being welcomed in schools that receive public funds to one in which all private schools are to be treated the same regardless of their mission or religious construct.”After describing the refusal by Mid Vermont Christian School to play a girls basketball team with a transgender-identifying male on it, Nichols says: “Thank goodness the student in question didn’t attend that religious school … but what if they did? Would we be okay with that blatant discrimination under the guise of religious freedom?”He also says: “Two religious schools have refused, to date, to sign an assurance that they would follow State Board rules regarding non-discrimination. It doesn’t take a rocket scientist to see that these schools and their far right supporters are gearing up for another lawsuit …” March 13, 2023Vermont Principals’ Association sends a letter to Mid Vermont Christian School saying that the school has violated the association’s “Commitment to Racial, Gender-Fair, and Disability Awareness “ policy and the association’s “Policy of Gender Identity,” and that therefore Mid Vermont Christian School “is ineligible to participate in VPA activities going forward.”Mid Christian Vermont later says that the ban includes not just sports but also extracurricular activities such as geography bees, math fairs, science fairs, and debating. November 2023Mid Vermont Christian School files a federal lawsuit claiming that the state of Vermont is violating its free exercise of religion under the First Amendment of the U.S. Constitution by punishing it for refusing to go along with state government’s policy concerning gender identity. The complaint cites both the ban by the Vermont Principals’ Association and the refusal by the state’s education agency to certify Mid Vermont Christian as an approved independent school for the purposes of receiving tuition from public school districts that don’t provide a public high school.Among the plaintiffs are four students and two sets of parents. The defendants are the heads of the Vermont Agency of Education, the Vermont State Board of Education, and the Vermont Principals’ Association; along with two local school boards and two superintendents.The complaint states that because of its expulsion from the Vermont Principals' Association, Mid Vermont Christian's sports teams are playing only fellow Christian schools, the nearest of which is in Concord, New Hampshire, more than an hour away. April 19, 2024During a hearing in U.S. District Court in Vermont, a lawyer for Mid Vermont Christian School says the school has received tuition payments from local school districts, though not when the payments were expected during the fall of 2023. He tells the judge that the state education agency is stringing the school along by giving it a one-year temporary approval instead of the typical five-year approval, which is preventing the school from hiring a math teacher and making it hard for parents of students to plan for the future."The parents that attend Mid Vermont Christian School as we speak do not know if the school is going to receive those funds in the future because the State has not approved Mid Vermont Christian School as a fully approved independent school. All the state has done up to this point is say, 'We will see,' " said Jacob Reed, a lawyer with Alliance Defending Freedom, a conservative advocacy law firm in Arizona that is representing the school, according to a transcript of the hearing..June 11, 2024U.S. District Court judge in Vermont appointed by President Barack Obama denies Mid Vermont Christian School’s motion for a temporary injunction that would force the Vermont Principals’ Association to allow the school to resume competing in interscholastic sports and that would force the Vermont Agency of Education to give it approved independent school status so it can start receiving tuition payments from local public school districts. The judge says in his decision that the school is not likely to prevail on free-exercise-of-religion grounds. Mid Vermont Christian appeals decision to the U.S. Court of Appeals for the Second Circuit. August 9, 2024During a U.S. District Court hearing, lawyers for the school and the state work out an agreement to allow Mid Vermont Christian School to compete in non-sports extracurricular activities like geography bees and math fairs with schools that belong to the Vermont Principals’ Association.According to a transcript of the hearing, the two sides wrangle over whether Mid Vermont Christian students would be forced to use preferred pronouns for transgender-identifying students, but a lawyer for the school says the kids there will just use first names.The agreement does not cover sports, and Mid Vermont Christian still can’t compete against other sports teams that belong to the Vermont Principals’ Association, which according to court papers is about 95 percent of the schools in the state. April 9, 2025Three-judge panel for the U.S. Appeals Court for the Second Circuit hears oral arguments on Mid Vermont Christian School v. Bouchey.All three judges were appointed to the federal appeals court by Republican presidents – one by George W. Bush, two by President Donald Trump. Both Trump appointees are members of the Federalist Society, an organization that identifies conservatives for federal judicial appointments.During oral arguments the judges for the most part sound skeptical about whether the Vermont Principals’ Association can compel Mid Vermont Christian School to agree with the association’s views on gender identity. One judge frames the dispute as over free speech, since Mid Vermont Christian’s ejection from the association for forfeiting the girls basketball game is much harsher than what other schools have gotten for forfeiting games for reasons other than objecting to a transgender-identifying male from playing in a girls basketball game.“So that's really your argument, isn't it?” the judge says. “I mean, it seems to me that if the forfeiture had taken place because it was prom night or because it was ring night at the school, then you lose the game and that's the end of it. It's that the forfeiture was accompanied by a statement, and that statement is not acceptable. So it's sort of a -- it's a speech test that requires the school to say ‘We agree with you.’ ”

Timeline of How Vermont Has Treated Religious Schools

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