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Officials: Vermont ruling on religious school tuition raises questions

Valley News Staff Writer
Published: 4/28/2021 9:00:28 PM
Modified: 4/28/2021 9:00:25 PM

When the Vermont Supreme Court ruled in 1999 that public funding couldn’t be used for religious worship or education but could be used for secular classes at religious schools, it left school districts in a bind.

Local school boards and administrators in districts that pay tuition to schools had no yardstick with which to gauge whether payments to a religious school would be funding religion or education. Districts made decisions on their own, with some paying tuition to religious schools and others drawing a bright line.

Last week’s decision by the Vermont State Board of Education requiring three school districts to pay tuition to religious schools, a matter that’s also the subject of litigation in federal court, doesn’t make things any clearer, according to school officials in two of the districts, both of them in the Upper Valley.

“For the State Board of Education to choose to decide it on a case-by-case basis seems really short-sighted to me,” said Elizabeth Burrows, chair of the Mount Ascutney School Board, which oversees education in Windsor and West Windsor.

Burrows, who was elected to the Vermont House in November, filed a bill, HB 130, that would require the State Board of Education to “by rule, define what a religious school is and set out the standards ... for how a religious school can demonstrate that it is not using public tuition for religious instruction.”

The State Board’s decision, issued at its April 21 meeting, takes the opposite approach, noting that there was no evidence that the religious schools had been asked whether they could “certify that public tuition payments would not be used for religious worship or instruction,” the decision says.

In reversing the decisions of local school boards, the State Board, which now consists entirely of members appointed by Gov. Phil Scott, crafted a narrow decision that does not clarify what actions local officials must take to make decisions that will stand.

“It’s a very challenging situation,” Nicole Buck, chair of the Hartland School Board, said Monday. She called the State Board’s decision “frustrating.”

“I think that the state needs to provide more guidance,” she said.

The State Board noted in its 21-page ruling that since the 1999 decision in Chittenden Town School District v. Department of Education, “the state did not adopt legislation or rules to implement Chittenden.”

The chairman of the State Board of Education, Norwich resident John Carroll, a former Republican state senator, said in a statement that the board would have no further comment on its decision. But he also acknowledged that either the board or the Legislature “may wish to provide guidance,” and that the board “may take up some issues via rulemaking.”

Vermont school districts that don’t operate schools at a particular grade level can pay tuition to public schools or to approved private schools, either in-state or out. Upper Valley towns in Vermont that pay tuition for secondary schools include Corinth, Chelsea, Tunbridge, Sharon, Strafford, Hartland and Weathersfield.

The Hartland School District was among three districts named in a federal lawsuit last year filed on behalf of families seeking tuition payments to religious schools. Hartland residents Stephen and Joanna Buckley send their son to New England Classical Academy, a Catholic school in Claremont. Hartland school officials denied their tuition requests and they appealed to the State Board of Education.

In addition, Michael and Lucy Dunne, of West Windsor, asked the Mount Ascutney School Board to pay tuition for their son, who attends the Kent School in Kent, Conn., which is affiliated with the Episcopal Church. The board denied their request and they also appealed to the State Board of Education.

A third family, from Rutland Town, also appealed a tuition decision, and a fourth, in the Ludlow Mt. Holly Unified Union School District, appealed but then had their tuition request granted by their district’s school board.

Of the four families, all but the Dunnes are plaintiffs in the federal lawsuit against the school districts and the state. The families are represented by the Institute for Justice, the same libertarian public interest law firm that represented the Chittenden School Board when it filed suit against the state in 1996.

Efforts to reach the Buckleys were unsuccessful.

The State Board’s ruling last week mirrors the state’s defense in the lawsuit, Valente, et al. v. French. Education Secretary Dan French and Carroll both filed declarations with the court stating that neither the state Agency of Education nor the Board of Education have a policy preventing local school districts from paying tuition to “an approved independent religious school solely because of the school’s religious status, identity or character.”

The state also entered as evidence a list of 82 payments to religious schools made by Vermont districts from fiscal year 2001 through fiscal year 2019. The list includes a payment to a Catholic school in Spain, several payments to Shattuck-St. Mary’s, an Episcopal school in Faribault, Minn.; to Woolman, a Quaker school in Nevada City, Calif.; and to Brigham Young University, a Mormon-affiliated school in Utah. Most of the payments were to prestigious Episcopal college preparatory schools, including St. Paul’s School, in Concord, and St. Andrews, in Middletown, Del.

The list also contains some errors. For example, North Country Supervisory Union never paid for a student to attend a Cornerstone Christian School in fiscal year 2018, but did pay to send a student to a Cornerstone School, a therapeutic placement in St. Johnsbury that was coded incorrectly by the Agency of Education, John Castle, superintendent at North Country, said in a recent phone interview.

“I feel confident that we would not have paid tuition to a religious school,” Castle said. Only one school district in the North Country SU, Coventry, pays tuition for high school, and most students attend a local public or approved independent school, Castle said.

Similarly, school officials in Sharon said they did not recall authorizing a tuition payment to Rice Memorial High School, a South Burlington Catholic school, in fiscal year 2009, though such a payment appears on the state’s list.

“I don’t recall that situation whatsoever,” Donald Shaw, the longtime Sharon School Board chairman, said in a recent interview.

“I personally do not remember a student attending Rice,” said Barrett Williams, who was principal of Sharon Elementary School at the time. Sharon has no middle or high school and pays tuition for grades 7 to 12.

For this year, the school districts will follow the State Board’s order and pay tuition to the religious schools, but they are hoping for greater clarity next year. The federal lawsuit continues, as the families seek to establish a right to receive public funds for religious education, and Burrows, a Democrat/Progressive, plans to press on with her bill in the Statehouse.

A hearing in the federal lawsuit is scheduled for 1 p.m. on Friday.

Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.




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