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"stt_transcript": "School v. Saunders. All right, Mr. Cortman, you've reserved three minutes for rebuttal, so that gives you seven out of the gate. The floor is yours. Good morning, Honors. My name is David Cortman. I represent the plaintiff's appellants in this case. May it please the Court. This Court has already ruled twice on the same town tuition program in both French I and French II, ruling that keeping out religious schools was a free exercise violation and ordering the state to include them. The only difference between this case and those is that the state was a bit more careful this time not to use the R word. It didn't explicitly say religious schools couldn't be in the program, but it reached the same exact result. Defendants argue in essence that the three new exclusionary criteria, the 25%, the minimum class size, and the geographic location, just happen to keep out religious schools by happenstance. Yet it keeps in over 75% of secular schools and an unlimited number of in-state and out-of-state public schools. The requirement for the 25% town tuition was tied to the only year that the religious schools were allowed in the program by order of this Court, and which codifies permanently the religious exclusion. In other words, there's no way for religious schools to get in the program in the future. I'd like to start with the Tandon. It felt like a grandfather clause, I guess, from the voting rights errors in that it basically said you've got to have 25% enrollment to a part of the tuition school transfer program, but you only had one year to do it when in all prior years you weren't, you were expressly not permitted to do it. That's right, and that's a permanent codification. There's no way to undo that in future years, and so it basically cements it. So independent schools, non-sectarian schools that also felt prey to that are eliminated also, right? They are. So how does it eliminate just exclusively non-sectarian schools? It's true. No, a scalpel, if it swiped and caught up some independent schools that don't have religious training. Well, I would add a couple things. It's not identifying just religious schools, is it? Well, it is not, but I would say the object of it is. So the religious... The object of it? The object. Under Lukumi, the religious gerrymander is what was the intent of doing so? What was the object of it? So there, the court said, it might have been facially neutral because it didn't mention religion. And how do we measure that object? What do we take the temperature of all members of the state legislation, all 150 of them? No, what we do is we look at the background facts, all the evidence leading up to the enactment, all the history of it. So what are the facts that you pled that identified that this was the way to do it? What committee reports, what testimony, what affidavits do you have from individuals that identified that this was the way to do it? If you look at all the evidence, first you start with the history of the enactment, which is what Lukumi talks about. The history of the enactment is on the heels of not only decades of religious schools being excluded from the program, but this court twice saying that even though the Supreme Court said you have to include in religious schools, that the state still kept them out, which led to the third lawsuit. And then when you look at this particular case that was ongoing, in the middle of the case, the legislature changed the law again after one year of religious schools being in to make sure that 100 percent. So I understand Your Honor's point that several of the secular schools were out, but there were 75 percent of the secular schools still in the program, yet 100 percent of religious schools are out of the program. When you look at all the statements from the legislature, which by the way, I'm not talking about hostility, I'm just talking about the object of the law. And what Lukumi said is you look at the object of law in its real effect. In its real effect is 100 percent of the religious schools are out. When you look at even the legislative record, I believe there was 38 different legislatures over the time period that the law was being considered. There were several predecessor laws over to Act 73. Was 38 enough for a majority? Excuse me, Your Honor? Was 38 enough for a majority? It wasn't, but we don't need a majority. This court said it was not. This court said a sizable portion, and I would say that 38 is a sizable portion. When you add that to all the other history and things that happened. But I want to touch base with Tandon real quick, because Tandon, none of this stuff matters. And the reason I say that is Tandon looks at what's going on. You don't need the history, you don't need the object, you don't need the numbers. It doesn't matter what numbers, whether there's 75 percent or the defendant's number of 55 percent. Tandon says if you have a program, you have to treat the religious schools the same as the best treated secular schools. And it's no answer to Your Honor's question to say you're treating the religious schools as poorly as some of the secular ones. And that's why Tandon, I think, is the most direct route. So let me ask, I sort of interpreted Tandon to say that if you're grouping things, your groups have to actually be proper groups relative to the purpose that creates the restriction in the first place. Yes. And so one of the things that I didn't see in your brief, and that I think probably one would have to do if you were challenging the fact that there are other categories that aren't subject to the same requirements, is do a granular assessment of each category to think about how it fits into the state's rationale, right? So one of the big categories is the therapeutic schools. Right. Now, am I right in understanding that the therapeutic schools are schools that a parent can't just say, I want to send my kid here. There actually has to be a student that the school district can't service, and the school district agrees to send a student to that school to discharge that school's federal obligation to provide a fair and appropriate public education. Am I... I believe that's correct. Correct. And I would add to that, it's a good point, Your Honor, that all of the private schools, including Mid-Vermont, have to be set up to take students in the IEP programs. I understand, but these schools are, these are for people, this is not just a regular student on an IEP, these are students on IEPs who cannot, whose needs are so great that they cannot be met in a regular public school system. Right, but can be met in Mid-Vermont. Pardon me? But can be met at Mid-Vermont. So in other words, Mid-Vermont is set up to take, by law, IEP students. So that student doesn't have the same choice, that student... So you could certainly get licensed or certified as a therapeutic school, but these schools are schools for students whose needs are so great that they're not a mix for a population. Well, not exactly correct, and that's why I just wanted to address that. So the private schools are required to be set up for IEP students, it's one of the requirements. So a public school may not be able to service them, but certainly Mid-Vermont and the other private schools are. So that's... Public schools have to be set up to take IEP students as well. It's not any old IEP student that qualifies to go to a therapeutic school. Right. Yeah, well, Your Honor's hypo was that the public school couldn't service them, so that's what I was basing it off of. So they may be set up. All my point was is that IEP student could then go to any other school, a therapeutic school, but if he wanted to choose or if she wanted to choose Mid-Vermont, even though they're set up to take her, she's not able to get the tuition money there. So help me understand that. I didn't understand the therapeutic schools to be sort of somebody's got a tuition opportunity and they get to choose where they go. I understood that they go to the public school, especially if they're in a district with a public school, and that that public school has to conclude that it can't meet their needs and has to contract directly with the therapeutic school. I don't know if it's required that the public school says it doesn't meet their needs. I think they could go regardless. But I do want to go back to Tandon because I think it answers Your Honor's question, and that is what's a proper comparator under the law, and I think this is a legal question. I think the error by the other side in the district court is, well, those schools are different so we don't count those. But if you look at Tandon, it was comparing at-home secular gatherings, which, by the way, applied both to religious and secular gatherings. And the dissent said, look, you don't compare restaurants and movie theaters and hardware stores to it. That was dissent. The majority said those are proper comparators, even though they're different in kind, and at-home religious gathering is different from a hardware store. But it still compared them and said that's a proper comparator. So to say the therapeutic school is different or the tutorial schools are different or the other schools are different, they're still proper comparators under Tandon because they're exempt from the program. Yeah, so I guess I think I read Tandon a little bit differently, and I thought in your brief you presented Tandon more the way I understood it, which is that not any categories aren't okay. If there are categories, you lose. It's that the categories have to be tied to the rest of the government. Advance to the government interest. Yes, and I'll... Yes. So we can... So what I'm trying to figure out is what you haven't done is a granular explanation of each of these other categories. If the rationale is we want to promote our interest in controlling costs, dealing with declining enrollment, fiscal sustainability, by limiting tuitioning to places necessary to fill historic gaps, reduce expenditures through system-wide consolidation. We don't want to be sending dribs and drabs of Vermont education dollars to lots of little independent schools, religious or secular, all around. If that's your rationale, don't you have to ask before you say these other categories compare whether these categories even describe schools that would be getting public dollars or tuitioning dollars otherwise? No, I think the correct part of what Your Honor just said was does it advance the government interest to say religious schools should be out and other schools, including therapeutic schools, should be in? And our argument is it doesn't advance the government interest stated, as Your Honor mentioned, to keep out religious schools and to keep in secular schools. And here's why. Let's just take them one at a time. So cost. The government here, the state here advances cost as a reason to keep out the religious Well, you're going to give me an answer that's way at this high level, but it's not the precision. This is the most transformative legislation in Vermont public education since Act 60. And I would say that it's 150 pages is Act 73. We're only taking issue with one page. The other 149 pages tell us a lot about the purposes and the dynamics and what's going on here. And if we looked at this one page in isolation, we might draw very different inferences about what the legislature is trying to accomplish with these rules than if we read the other 149 pages and realized that this bill is creating very painful closures of local public school systems, our public schools and communities that are going to be devastated by them. It's not singling out religious schools in any meaningful way. Well, I disagree. But what you have to look at is what's the government interest that the state is claiming? I'm not saying what these are. The state puts forward in its brief its government interest 20 different times is cost savings. So that's why we're looking at cost savings, not because we said it's the interest, it's because that's what the state said. And when you look at cost savings, it's actually cheaper to keep the religious schools in the program because they're less expensive than all the other schools that that student has a right to go to. Don't forget the tuition money follows the student, not the school. So once, for example, OPR client is in a sending district, it's a district without a public school, then the state's required to pay for them to go to another school. And it says, well, we're trying to save money. The problem is it's actually spending more money by keeping out the religious schools because in the record we've shown that religious schools are cheaper. So now OP can go to any public school or other private school and the state's spending more money so it doesn't further their interest that your honor talked about. But no bill of 150 pages has a sole goal. And I would say that containing cost is not even how I would define the goal of this. What's the way they define it? They're trying to keep, for purposes of the section 21, what they're trying to do, whatever the provision is we're looking at. The purpose is to try to keep as much money as possible in the system, in the public system. But there's no proof that it does that. See, that's the other problem. I mean, maybe we should focus then on the out-of-state public schools that are exempted from all the requirements that the religious and independent schools are. Right. And then the state's money can go, Vermont's money can be sent out of state even more expensively than allowing religious schools in the state to go in. There's no limit to the number of schools, out-of-state public schools. Your Honor, it talks about any interest they put forward is not furthered by allowing out-of-state public schools in the program. Not public school consolidation, not cost, not anything Your Honor raises. And they're exempt from the same requirements that we're talking about here for Mid-South. So if the out-of-state public schools are treated more favorably than the religious schools, isn't that enough under tandem to say this is not generally applicable? It is. It is. And I agree, and I would argue that all the other exemptions and the fact that there's still 38 independent secular schools that are private in the program is enough for tandem. But I agree, Your Honor, it's all you have to look at as the out-of-state public schools. We just think there's multiple layers. So talk me through, and I apologize because there may be a lot more robust record on this than I've read. The out-of-state public schools, is there evidence about the circumstances under which people avail themselves of that option? And I'm assuming it's border, it's people along the border who don't have a public school accessible to them. It is not limited to border schools. There are border schools in our interstate programs, but it's not limited to border schools. But there's no geographical requirement at all, right? That's exactly right. At least as written, it could be a school in Montana, couldn't it? Yes, it could be. That's exactly right. And historically, there were schools in Canada. Right, because Canada's a bordering state. All the point is it doesn't have to border the state. It could be anywhere due to that. Okay, is there any evidence? In other words, it matters not just what the rules on the paper are, but what the reality on the ground is. As long as it's not after the fact created reasons, yes. Right. So one of the things I'm trying to understand is, if the evidence is that there are places in the state where there is no public school, no qualifying independent school accessible, those are the ones who are going across the river or going across the Canadian border in the Canadian case, that or the combined school districts, that would look very different from people regularly flying to Montana on Vermont's dime in terms of the purposes of the tuitioning program. The reason why people would go out of state, we don't know, but there's no geographic limitation to where they could go. Right. I understand that. There's no evidence about that. There's no evidence that any of the interests that are proffered by the state are furthered by keeping out the religious schools and keeping everybody else in. That's the question in tandem. So I understand Your Honor is looking at the grouping, but the point is, what the Court said there is, is a religious at-home gathering the same grouping as a restaurant and a movie theater. The Court said that's not what you look at. What you're looking at is the government interest furthered by keeping in the restaurant and keeping out the religious home gathering, and the Court said no. Religious schools aren't kept out of being therapeutic-approved independent schools. They're not kept out of sponsoring approved education programs, and they're not kept out of tutorial programs. But it's the wrong question. So Tandon addressed that exact question. The state in that case, California, argued that the people from the religious home gathering, they can go meet at a movie theater. They can go to a hair salon. They can go to church on Sunday that have bigger capacity, and the Court said it's not the fact that they can do one of those other things. What we're looking at is can they meet at the home gathering, and I think that addresses Your Honor's question. I don't think so, because again, you still have to look at each of these categories. So let's say that one of the categories here is essentially for students, and I don't think it's a let's say. I think it's the tutorial program, but it might be the approved education program. You've got kids in state custody. Sure. And so this is not a program that could be sort of fit within the normal public school framework, and it's not a program that would make sense to put the kinds of geographic and class size limitations, because it's its own thing. And there's nothing that says that religious schools can't compete to provide that service, but it is a different service. It is, I would say, two responses. Under that scenario, the religious home gathering can go to a movie theater. They can go do the approved. It's the same point. You have to ask whether the movie theater is the same for the purposes of, and let's assume that the court was right. There wasn't much of a record to look at spacing and other things, but let's assume the Supreme Court was right as an evidentiary matter, because it assumed that a movie theater, having the same number of people at a movie theater is functionally the same in terms of risk as having the same number of people in a home. That's why it's not okay to treat them as different groupings. I think you have to grapple with what each of these categories requires and does to figure out whether it's the same with respect to the state's goals, not at some high cost. Well, I would disagree, and the reason is it's up to the state to advance the government interest that it claims. The only interest they could claim is, well, that school serves, I think, gaps in the public education program, which Your Honor was referring to before. You have to look at what the government interest is. If the government interest is, well, we have a gap in our public education, so we need those schools, what we would say is there's a gap in your education for religious schools. You can't elevate a secular gap for therapeutic schools and not elevate the gap for the religious families here that are called to go to a religious school. But you still have to identify whatever the government interest is. We can't just say the school is different because Tandon already addressed that. But the state has a legal obligation to provide, for example, adequate education for students who require IEPs that can't be met or aren't being met in their public schools that qualify for a therapeutic school. Right, and the same point could be made for religious students. The state has an obligation to provide religious education at a religious school. You're saying that the state has an obligation to provide religious education for students? It has an obligation to provide for education for every single student. What the discussion was, for the people who need the therapeutic schools, there's a gap that the public school can't provide for. And what we're saying is there's a gap for religious families whose religious beliefs say we need to go to a religious school. So doesn't that prove too much? I mean, that's not just an argument about tuition. What you're saying is if you're going to have a public school system, you need to build in a mechanism for providing religious education for people who want to incorporate that into their schooling. No, what we're arguing is that if there's a public school system and you use private schools to fill in the gaps, then you can't keep out religious schools also. That's all we're saying. So the state doesn't have to allow it. Based on the fact that they're religious schools, but if they use a formula that's neutral and not designed to keep out religious schools, but it happens, the effect happens to be that it does, then what's the violation of the free exercise clause? If that was used in neutral principle, it doesn't in any way select based upon the fact that it's religious in nature, but it just doesn't meet what's necessary to provide a free and adequate education. Theoretically, that may be possible, but it's not what's been done here. But you're saying that the therapeutic schools all have to be considered? Is that it? Well, it's just one of the things that has to be considered along with the other ones. The therapeutic schools identify a specific population with a specific educational need that's not shared by the other members of the public? It undermines the government interest in the same way as a religious school. So you're equating someone who's learning disabled with someone who desires to have a religious education? Is that it? No, what we're looking at is what is the government identifying as the interest? And if the interest is a gap where public schools don't satisfy it, all we're saying is that there's a gap for the religious students too. That presumes that they have an obligation to fill that gap, the religious gap, whereas with regard to a student that has a learning disability, that's completely different from a religious preference. Sure. As is a restaurant different from a home gathering. I'm sorry, the analogy doesn't work for me. I appreciate that, Your Honor, and that's fine. And we could stay with the out-of-state schools. I think that undermines all of their interests. I'm trying to understand how an out-of-state school being exempt from all the requirements of the religious and independent schools advances the goal of streamlining the state's education system and making that system more cost effective. I think I know your answer to that, but that really is the argument that gets you where you want to go. It is the easiest argument to get where we want to go, yes. So maybe we should stop there. We'll hear from Mr. Stratton and then we'll hear back from you for a summary vote. Thank you, Your Honor. May it please the Court, Sam Stratton for the State of Pelley's. I want to start with this point about the out-of-state schools that Your Honor was just picking up on. I'm happy to get to the rest of the argument as well. But to answer that question about how it advances the state's interest, out-of-state schools have a long history in Vermont's public education system, and it's distinct from the way that independent schools are used. Out-of-state schools are largely used by border communities where there's a whole community where the closest public school for them is an out-of-state school. Vermont also has a long history of not allowing people to go to religious schools, so I'm not sure that that's going to help you very much. But how does using these out-of-state schools advance these two goals, streamlining the state's education system and making the system more cost-effective over these religious schools that might be closer and cheaper? Yep. So cost-effectiveness has two elements, Your Honor. So it's both reducing costs and increasing or at least maintaining a certain level of quality. And the out-of-state schools address both of those interests. So, again, as I mentioned, out-of-state schools are primarily used by whole communities where that's the closest public school for them. So large groups of students are attending these out-of-state schools. There's no requirement that large groups do it, right? No, certainly not. And if it's one student, it's fine, whereas the other, the independent schools need to have 25 percent town tuition enrollees, right? Certainly, Your Honor. You're talking about the facts confronting the legislature with regard to the reality on the ground in Vermont, is that it? That's right. As opposed to hypotheticals sending someone to a New Mexico school. Exactly, Your Honor. Go ahead. Exactly, Your Honor. And, you know, certainly if we're talking about program design and, you know, how we might have written it, maybe it'd be different. But what we're talking about here is what the state's interest is. And the state's interest in funding out-of-state schools is that there's administrative savings by funding a school where 20 kids from a particular border town all attend that school. Whereas the in-state, the town tuition program, which is the independent schools, whether they be secular or religious, those schools are chosen by individual parents. And so the funding doesn't necessarily have the same sort of administrative economies of scale and cost savings, which are one of the major motivations behind this whole act. Wait, you're saying out-of-state schools are not chosen by the parents? They are chosen by the parents, but they're chosen generally en masse in groups. And so there's more of a… What does that mean, they're chosen en masse in groups? Particular towns, lots of families… No, no, no. If I live in a particular town that doesn't have a school district, I'm allowed to choose where I want to send my kid to school within the parameters of the law, right? Correct. And if I'm the only one in my school district who wants to go to the out-of-state school, nothing prohibits me from doing that, right? That would be right, Your Honor. But if I'm the only one who wants to go to a religious school that's right down the block, I can't go if they don't have 25% enrollment of town tuition in students, right? That's correct, Your Honor. And so how does that distinction further either of these two goals? I think, as Judge Wesley mentioned, it's about the facts encountering the legislature on the ground. What does that mean? How does this advance what I just described, the hypothetical I described? How does that advance cost savings, making it more cost effective? Well, when we judge the sort of cost effectiveness of a policy, we judge it based on the program design and not necessarily on the individual results of the policy. So here the program would— But then we can never lose, right? That's what you're saying, basically. No, no, certainly not, Your Honor. We could lose if the program were designed in a manner that plainly wasn't related to cost effectiveness. But we're saying that this is related because with respect to the out-of-state schools, there's, again, a practice on the ground of towns where large— A practice on the ground? Wait, I don't understand. I just gave you a hypothetical that I can choose between two schools, a $10,000-a-year religious school that's right across the street or a $15,000-a-year out-of-state public school that's 10 miles away. And nothing prevents me from choosing the latter, right? That's right, Your Honor. And so how does that advance the cost effectiveness for—that's the stated goal of the state of Vermont? Because the state—I mean, I suppose the state could have imposed a condition where, you know, you have to attend the cheapest school available, but that's not how the legislature chose to design the program, and that's not what's required under general applicability. I know. Well— Because the state's trying to keep the dollars in as few schools as possible so that it can make sure those schools are sustainable, and I'm misunderstanding that. That's generally correct, Your Honor, yeah. Are there any constraints on the—it's interesting. I couldn't find any—I didn't look in the regulations. Are there any guidelines as to who—once you're in a sending district, are there any guidelines about out-of-state public schools? I'm not sure I understand the question, Your Honor. Limiting you as to what you can choose or how far you can go or anything like that, or is it— is there something in the law that talks about out-of-state public schools? No, no, there's not. More in more detail. No, there's not. They're eligible under the same section of the statute, and our— And then does the legislature have or is there record evidence here about— putting aside the hypothetical my colleague posed, in terms of the existing practice, is there evidence that there are a lot of one-offs, people going to—one or two people going to an out-of-state school from a district while others are going somewhere else, or—what is the evidence? I want to be careful about getting over my skis here because none of this is in the record. This wasn't developed below. My understanding from working with the state agency and the state board is that there are— there's some of that, but that the predominant practice is, as I mentioned, mostly communities where large numbers of students are attending. So why then not just make the 25 percent requirement that is applicable to independent schools applicable also then to out-of-state public schools? I suppose the legislature could have done that, Your Honor. But they didn't. No, they didn't. And so doesn't that make this less favorable on its face? It would if— For the independent schools. It would if we accepted the premise that out-of-state schools— out-of-state public schools are comparable to in-state private schools for tandem purposes. So if we accept that premise, then yes, Your Honor, that would be the case. But why would they not be? I guess I'm trying to— The explanation you said is that, well, in practice, a lot of— a large percentage go to the same out-of-state school. And so it's probably close to the 25 percent requirement that applies to independent schools. But it's not a requirement. No, it's not. And the question is whether the criteria that govern are designed to address the legislature's compelling interest here, which, you know, that's what the court mentioned in Tannen, is whether we judge comparability based on the state's interest at play. But in your interest, I mean, I keep asking you, how is your interest in cost-effectiveness advanced by this? And you assure me that, trust me, in practice, a lot of people go to the same out-of-state school. Well, I think there's—I think it's not about the specific results. It's about how the program is designed. And I think, again, this may be a broader point about general applicability that we're mentioning. The statute makes a strict requirement of 25 percent for the independent schools, right? Correct. And it doesn't do that for the public schools, right? Right. And you're saying the reason for that is what? The reason for that is the legislature determined, based on the record before it, that out-of-state public schools are generally used by communities. And so the sort of cost savings, the administrative economies of scale cost savings, are baked in, at least to a degree, with respect to those schools, in a way that's not true for independent schools in this case. Is there any contention by your opponent or record evidence that shows that that presumption is wrong? There's nothing in the record that I'm aware of, Your Honor. It calls into question that it's fake facts. Nothing that I'm aware of, Your Honor. Do they contend that your characterization of the legislature's motivation, that it was something like there's a community, there's a Vermont community, and there's a New Hampshire community? The school's in New Hampshire, and therefore a substantial number of kids go across the border and go to school in Vermont. Is there a contention that that's not the case? No, not that I'm aware of, Your Honor. And, in fact, most of the schools, most of the students who are attending these schools, are doing so under two interstate public school districts. They're somewhat unique. There's two of them on the New Hampshire-Vermont border, where the high school happens to be located in New Hampshire, but they are, for legal purposes, Vermont school districts. So part of including this eligibility and not conditioning it on enrollment patterns is keeping those districts eligible. Otherwise, there would be a legal issue as to the eligibility of those districts going forward, where, as I understand it, in both of those districts, most of the students and maybe even a large majority are from New Hampshire, but certainly the majority in both districts. Do the records reflect whether there were available sectarian schools within those border communities that somehow then suffer as a result of the fact that the kids can go across the border schools on tuition, but they can't go to school at the sectarian school? I'm not aware of anything that precise on the record, Your Honor. I've never heard your opponent identify any. Yeah, I'm not aware of anything that precise. I think that the record generally would suggest that that's possible. I don't happen to know where all the sectarian schools are based. Does the record, I was just going to ask you, does the record reflect as to where the locations of the sectarian schools are with regard to population bases in Vermont? To some extent, Your Honor. So in the record, there is a school directory. There are two school directories from before and after Act 73 was enacted, and those do list the locations of the schools. We also have a cheat sheet that was used for the hearing that the agency prepared to sort of list which schools met the geographic and enrollment criteria. The agency doesn't track. No one in the state tracks a school's religious affiliation. There's some self-reporting. There's some ability to infer it from the name, but on some level we're relying on appellant's representations here about which schools are religious. So to answer your question shortly, it would be possible to derive that information from the record, but it's not sort of plainly stated anywhere. And how about class size requirements? The out-of-state public schools have no class size requirements either, right? The out-of-state public schools do not, no, Your Honor. And so what would be the basis for distinguishing between schools that are independent and out-of-state public schools with respect to class size, given the stated goals of the legislature? Well, part of it is that the state of Vermont can't legislate class sizes in New Hampshire schools, and that would, I think, pose a comedy issue that the state, I suppose, chose to avoid by not imposing that requirement. But the state of Vermont doesn't have to pay for out-of-state public schools, right? No. It chooses to and doesn't impose a class size requirement, right? So it does have to pay for two out-of-state public schools. In the Dresden School District and in the Rivendell School District, the Dresden one was actually created by an act of Congress, so Vermont is federally required. Well, just answer my question. But with respect to other schools, no, it doesn't. But the legislature, you know, reasonably chose to not impose that requirement. But you can't just put reasonably in front of what you're about to say and think that that covers the problem. So how are the stated goals advanced by allowing out-of-state public schools to have class sizes of whatever, 12 in a class, but requiring the independent schools in Vermont to have 15 or 18? I see that my time is up. Can I? You can answer. Thanks, Your Honor. So I guess I would say two things to that. First, I do want to know for the record that the class size requirement isn't currently in effect. There's some issue about that in the briefing. So the Act 170 that the legislature passed this year kicked that deadline out until the rulemaking has gone into effect. But it's not going to affect out-of-state public schools regardless, right? It's not going to affect out-of-state schools. So address that on the merits, Your Honor. I would say that, you know, the question is whether or not the state has, again, an interest in ensuring a certain amount of cost savings and a certain level of quality. And I guess with respect to the out-of-state public schools, the state determined that New Hampshire or New York, as it were, or Massachusetts school board is sort of achieving that in some way. And those states actually have. You guess that they're achieving it in some way. I think the legislature made that finding or made that determination, and that's what is guiding this. You know, the legislature expressly did make a finding that those schools are educating students on a cheaper basis. Vermont had one of the most expensive, if not the most expensive, I need to check the record, education systems in the country on a per-pupil basis. So all of its bordering states were cheaper. You can make that argument and then just ignore the fact that the mid-Vermont is cheaper than the state schools, probably in and out of state. Well, again, general applicability is about how the program is designed and what rules are applied. It's not about the particular results and whether each individual… Right, but the rules are written in such a way that it is irrelevant whether it's a cost saver or not. It seems hard to argue that this is a rule of general applicability or that that stated goal is a sincere one. No, Your Honor. I mean, whether we're talking about… Because we really want to save money and we're allowing people only to go to schools that are more expensive. I wouldn't put it like that, Your Honor, but I think that if we got to strict scrutiny, then this conversation would be more appropriate and we're talking about whether this is the best way to design the state's program. Although, even then, perfect tailoring isn't required, only narrow tailoring. But we would suggest that we're under rational basis. And even before that, the court shouldn't import its strict scrutiny analysis into the threshold determination of whether or not a law is generally applicable. And I think that's what plaintiffs or appellants are asking for here in getting down to this granular, school-specific, student-specific cost-saving analysis, when, in fact, the analysis required under Tandon is whether the rule, not the outcomes for particular parties, but whether the rule that applies to groups is furthering the government's interest or connected to the government's interest and the legislature has made findings to that effect. And we would suggest that that's… Go ahead and finish your thought. I apologize. We would suggest that's the case here. Is there a finding or any contention that costs… What are the costs in the context of the overall cost per pupil under the old system and now under the current system? Do you know? I don't recall the exact figures. I know that there's a cap on how much towns can pay to receiving districts. That cap is, I think, $18,000. And that's the statutory limit, so there's some cost savings baked into that as well. But I don't recall the exact part. Cost savings goes beyond just the tuition question, doesn't it? Sorry? Cost savings goes beyond just the tuition issue in terms of the state's obligations. There are other factors that play into what it costs to educate a student in Vermont, beyond just the tuition payment system. That's true, and certainly at public schools, there's a bunch of overhead, and there's even overhead at receiving schools, whether they be out-of-state public schools or independent schools. There's administrative overhead associated with sending students to a particular school, and that overhead is going to be relatively inelastic with respect to the number of students. What's the percentage of population decline in the Vermont student population in the last 6 years or 10 years? I don't have the last 6 or 10 years. I know that in the last 20 years, it's about a quarter of the population decrease, so that's pretty substantial, and that's what motivated the act at issue here. I mean, when the governor announced the act, it was all about public school consolidation. The private school, independent school aspect is sort of a sideshow in the main act, as I think Judge Robertson was mentioning, and it certainly is connected to the interest, as we've explained in our briefs, and I've explained again today, but the real motivation here is about the cost savings on the overall system-wide level. Has the population of the state itself experienced a 20% decline in population? I believe that it's experienced a lower decline, or at least not an increase. It's just gotten older. Right. The population is aging, Your Honor. And declining birth rates. Yes. Similar experience being experienced in upstate New York, smaller school districts, smaller classes in many of the rural schools in upstate New York. It's true throughout rural America, to my knowledge, Your Honor. Can I, like, we've talked a lot about cost. When I look at least at the articulation of the state's interest in your brief, it's a little more nuanced than just cost. It deals with cost, but also fiscal sustainability. And I understood that, again, the next sentence says, it promotes that interest by limiting tuitioning to places where it remains necessary to fill and store gaps in public education delivery and reducing expenditure due to system-wide consolidation. I understood that to be saying, independent of the per-pupil cost at a particular place, we want to keep as many dollars as possible within as confined a system as possible to support the sustainability, rather than sending some money here, some money there, some money there to little independent schools all over. Am I... No, I would say that's right, Your Honor, and I apologize if I haven't been clear on that today. Yes, the cost, again, isn't about sort of granular cost savings per school or per pupil. It's about sort of creating a system that's going to work both now and in the long term for funding Vermont's rural aging and perhaps declining population. I see the amount of time. I want to make one quick point on the therapeutic schools, which were subject to some discussion by my colleague, if that's all right. I just want to note that the therapeutic schools, again, are statutorily required by the federal government. So, you know, if Appellant's argument is true, that those schools are comparable for tandem purposes, then every state in the country would have the same obligation to fund religious schools under sort of the same theory today, regardless of whether the state has a town tuitioning program or a voucher program or anything similar. We don't think that's what Congress intended when it enacted the IDEA or the Rehabilitation Act, but that would be the upshot of Appellant's tandem argument, specifically with respect to the therapeutic schools. All right, thank you. Thank you, Your Honor. We'll hear from Mr. Cortman for three minutes of rebuttal. Thank you, Your Honor. Just a couple of points in rebuttal. The money follows the student, not the school. So when the student doesn't have a choice to go to a religious school, necessarily more money is being spent by the state. The average tuition spent for public schools is actually in the record. It's at J.A. 681. It's $22,638. That does include the buildings and the overhead. That's the state's own number. So $22,000 is the average, and the religious schools are anywhere from $10,000 to $18,000. So there is no cost savings, and that was my point. The government interests are not being advanced. Even the interest of keeping them ______. Cost alone isn't the only government interest, is it? It's not, but it's one of those. So is it the determinative interest? You're presenting it kind of like that it is, and I would suggest to you that it's not quite that simple in public life. Well, all we can go by is what the interest that the government puts forth, and so if it puts forward several of them, I'm just addressing each one. You're saying that the government put forth cost is the bottom line? Not the bottom line, but the most stated in its brief 20 times, more than any other interest, and that's why I'm addressing it. Streamline the state's education system, make the system more cost effective. Right. No, it's streamlining. Yes, and 20 different times in the brief, which is why I started there. It was the most stated interest, which is why I went there. Not less cost, more cost effective. Deliver the dollars to where they do the most good. I would believe they're synonyms because it counts all the other costs in it. It's not just average dollars, it's buildings. But also, too, the council mentioned about keeping the dollars in the public schools. That interest is undermined for every out-of-state public school and for every in-state private secular school. So these government interests, as I mentioned, have to be furthered by the program and the requirements. They're not being furthered because they're not keeping money in the public schools. How many out-of-state schools are there? How many out-of-state public schools? Tens of thousands? No, well, that are in the program. Currently receiving tuition payments of Vermont taxpayer money. I don't know, but on its face, there's no limit. It's unlimited. There's no requirement. I didn't ask you whether there was a limit or not. I know there's no limit. But I asked you what the number was. It's not in the record. And I would add one more thing, Your Honor. It's defendants' burden to prove all the questions that Your Honor asked. They have to prove that every government interest is furthered, not in general, by keeping out-religious schools and keeping in-sected schools. It's their burden to mention all the evidence that Your Honor asked the opposing counsel about. What about a brand-new out-of-state public school and a brand-new religious in-state school? Can a brand-new religious in-state school participate in the program? No, and a brand-new out-of-state public school can. And that is the point. If there are no further questions, I rest. Great. Thank you. Thank you. All right. We'll reserve decision."
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