Lawsuits put school choice on Vermont Legislature’s agenda

Valley News Staff Writer
Published: 10/8/2022 11:06:12 PM
Modified: 10/8/2022 11:06:01 PM

For the past few years, at least, New Hampshire has had a robust debate about sending public money to private schools. First, Croydon School District started sending students to private schools, a practice the state Legislature codified in 2017 with the so-called Croydon bill.

Since then, the Granite State has forged ahead, with a Republican legislative majority and governor approving “education freedom accounts,” a more widespread use of public money for private schools.

Vermont, on the other hand, has long had a form of school choice in select towns that don’t have their own public schools. But the use of public funds, which have traveled to schools outside Vermont and outside the country, seldom comes up for public debate, and on the campaign trail it is seldom spoken of.

But a pair of lawsuits, one federal and one state, that seek to expand the use of public money for private and religious schools might be changing that. Politicians running for reelection this fall say they think the Legislature will have to act next year, most likely to restrict the use of public money for religious education. In a state where the vast majority of students attend their local public schools, and where declining enrollment has driven up the cost per pupil of public education, it’s possible the state will enact deeper restrictions to keep Vermont’s tax money in its public schools or at least within the state’s borders.

The debate “does have the real possibility to alter the Vermont education landscape,” state Sen. Brian Campion, a Bennington Democrat, said in a phone interview.

Most of that discussion will focus on the separation of church and state, an issue brought to the fore by the U.S. Supreme Court’s decision this summer in Carson v. Makin, which overturned Maine’s prohibition on paying public tuition money to religious schools. A federal lawsuit similar to Carson was stayed in Vermont to await the Carson ruling. Like Maine, Vermont, which pays tuition to private schools, must now pay tuition to religious schools, too.

Vermont Education Secretary Dan French announced recently that the state would pay tuition to religious schools. Lawmakers have other ideas.

This year, SB 219, a bill Campion introduced that made its way out of the state Senate but didn’t come up for consideration in the House, would have restricted the practice by requiring any school receiving state tuition funds to adhere to “all federal and State antidiscrimination laws applicable to Vermont public schools,” the bill says, and to “not use public tuition to support religious instruction, religious indoctrination, religious worship, or the propagation of religious views.”

Campion said he expects to bring up the measure again when the Legislature reconvenes in January.

The Vermont Constitution’s compelled support clause asserts that no one can be required to support a particular religion, Peter Teachout, a professor of constitutional law at Vermont Law and Graduate School and a former chairman of the Dresden School Board, said in an interview.

“The problem is that Secretary French agreed that we will not enforce this provision of the Vermont Constitution,” Teachout said.

Backers of sending public money to religious schools rest their assertions on the idea of “religious liberty,” state Sen. Dick McCormack, D-Bethel, said in an interview. But maintaining “the wall of separation between church and state, that’s what religious liberty looks like,” he said.

The Vermont Independent Schools Association, a lobbying group that testified on SB 219, argued in support of the limits the bill would place on public funding of religious schools. There are 17 religious schools in Vermont enrolling around 1,800 students, the association reported to lawmakers in January.

Expanding tuitioning

The second lawsuit is more expansive. The plaintiffs in Vitale v. Vermont contend that every student should have access to the state’s program of public tuition. The plaintiffs include a Chelsea family who say in court filings that their child needs to attend another school because of bullying.

Vermont Superior Court Judge Timothy B. Tomasi sided with the defendants, which included the state, Secretary French and three school districts, dismissing the lawsuit after a trial last year in Orleans Superior Court. The plaintiffs, represented by lawyers from the Liberty Justice Center, a Chicago-based libertarian legal nonprofit, immediately appealed to the state Supreme Court.

The plaintiffs argue that the tuitioning program is a benefit denied to them because they live in towns that operate schools for the grades their children are attending. Vermont does have a separate school choice program that allows parents to petition to send their child to a different school, but the state funding doesn’t follow the child to the new school. (Parents aren’t expected to pay tuition at the new school.)

Around 90 towns pay tuition for some or all grades. A report for the state Auditor’s Office in 2021 found that in 2018-19 around 3,407 students attended “approved independent schools” in Vermont and another 435 attended out-of-state schools. Together, that’s about 5% of Vermont students. The other 95% attend public schools, though some of them do so as part of the town tuitioning program — a student from Sharon, which has tuition for middle and high school, going to Hartford High School, for example.

Tuitioning history

From the earliest days of public education in Vermont, the state has allowed school districts that don’t operate their own schools to pay tuition to schools in other places. Initially, this enabled students in smaller, less affluent towns to attend school, usually secondary school, as most towns had a number of one-room schools or later a centralized elementary school.

The system was less about choice than about guaranteeing access, Bill Mathis, a longtime school superintendent who served for 10 years on the State Board of Education, said in a phone interview.

“Vermont was the first to have a clause in the Constitution that really guaranteed education for everybody,” he said.

At first, secondary education took place at private academies and seminaries, most of which closed after Vermont began centralizing schools and building public high schools in the 1890s. A subsequent wave of centralization, in the 1960s and ’70s, created union high schools around the state, though some regions retained smaller K-12 schools, notably the White River Valley in Bethel, Chelsea, South Royalton and Rochester.

The remaining academies, including Thetford Academy, and newer public schools welcomed students from surrounding towns who often attended the closest school. Most towns that didn’t join a union high school district retained the tuitioning program, among them Hartland, Sharon, Strafford, Tunbridge and Weathersfield.

In the 1990s, after Vermont made it easier to open a private school, tuition money began to flow to them. At the time, rising enrollment, which crested in the mid-’90s, meant there were plenty of students to fill the existing public schools and the growing number of new private schools.

Now, in addition to the state’s four “traditional academies,” which are private but function as public high schools for surrounding towns (Thetford and St. Johnsbury academies, Lyndon Institute and Burr & Burton), there are 50 independent schools for the general education population and another 29 for special education students.

As the number of schools has grown, the number of students has fallen from around 100,000 to around 80,000. This has led to sharp increases in per-pupil costs at public and private schools alike.

“We do have a lot more physical space than we had before,” Mathis said, which has had “a tremendous impact in terms of cost.”

Parents have sought out Vermont’s tuitioning towns, because the state’s payment is essentially a portable voucher. Around $6 million a year in Vermont tuition funding leaves the state for schools around the U.S. and abroad.

An accounting of the tuition paid to out-of-state schools in the Manchester, Vt., School District shows it paid $132,000 in private school tuition, spread among 12 different schools, including Deerfield Academy and Northfield-Mount Hermon in Massachusetts and Loomis Chafee in Connecticut, among other pricey private boarding and day schools.

For fiscal year 2019, the district, now consolidated into the larger Taconic and Green Regional School District, spent $275,382 for out-of-state tuition, including $19,632 for tuition at Hanover High School, records show.

The lawsuit seeking to expand tuitioning statewide raises a question Vermonters often think about, but don’t often consider in public: whether allowing residents of some towns to have school choice and not others violates a basic sense of fairness. It’s an issue that stirs up enough anger that people tend to just let it lie, elected officials said.

When he was on the State Board, “I got my head handed to me when I started getting into (whether) private schools should have to meet the same standards as public schools,” Mathis said.

Even so, the upcoming debate is likely to include the option of ending the state’s tuitioning system entirely, either by requiring districts to merge or to designate public schools, Campion said.

“It’s not anything that I think will get any legs,” Campion said. He doesn’t favor the idea, in part because it’s not clear how such a proposal would affect the four traditional academies.

But with families facing higher tax bills and the question of school tuition on the table, such a debate might go further. There has long been interest in keeping Vermont tuition money in the state, and there also has been a long debate about creating a level playing field between public schools, which must accept all students, and private ones, which can accept and reject students.

State Sen. Alison Clarkson, D-Woodstock, has authored legislation that would end the practice of taking public education money to private schools in other states. While she expects separation of church and state to drive the debate in Montpelier, she thinks other aspects of tuitioning will be on the table.

“We’re one of the few states that enables public money to go to private institutions,” she said. “I firmly believe that if we’re going to let public money flow to private institutions, it has to benefit Vermont. I would very much like to see no tuition dollars go out of state.”

As passed by the Senate, SB 219 would allow tuition funding to flow only to schools in states that border Vermont, Campion said, though that provision might run afoul of constitutional language that prevents limits on interstate commerce, he noted.

As a political issue, Vermont’s tuitioning program seldom gets a full public airing in part because school choice is a conservative issue, but many of the strongest adherents in Vermont are Democrats who want to send their children where they will.

“There are people who kind of like the choice thing,” said McCormack, a former chairman of the Senate Education Committee. “It is a sweet deal, and I know many people who are generally liberal and egalitarian and believe in economic justice who nonetheless want to hang on to something that they think advantages their kid.”

He also sounded a note of caution: “The general notion is that you don’t want to disrupt when it’s not necessary.”

“I think wherever we come down,” he added, “equal opportunity is the law and that’s where we need to be looking.”

Alex Hanson can be reached at or 603-727-3207.

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