Vermont Supreme Court ruling could offer ‘road map’ to statewide school choice


Valley News Staff Writer

Published: 03-27-2023 3:57 PM

The Vermont Supreme Court has dismissed a lawsuit brought by three families who argued that the state should pay for all students to attend the school of their choice, public or private.

The court’s March 17 decision in Vitale v. Vermont affirms a ruling from state Superior Court in Orleans County. Both courts effectively declined to hear the case on the ground that the plaintiffs were not asking for something the court could provide.

The Vermont Constitution and subsequent state law requires the maintenance of public schools, but allows districts that can’t or don’t wish to maintain a school for some or all grades to pay tuition to a public school in another district or an approved private school.

The families who filed suit, one of them from Chelsea, argued that the state law permitting some students access to tuition is unfair on its face, meaning that there is no circumstance under which the law could be valid. That’s a high bar to clear, and the court’s decision, written by Harold “Duke” Eaton Jr., and unanimously approved by the five justices, invites another attempt, which one of the lawyers for the plaintiffs sees as a victory.

“Our conclusion in this case does not end the evolution of the debate over how the state should educate Vermont children,” the decision says. “It also does not foreclose the possibility that a plaintiff could bring a challenge that satisfies the legal standards stated in this opinion.”

“Of course, we’re somewhat disappointed,” Deborah Bucknam, a Walden, Vt.-based lawyer who represented the plaintiffs, said in a phone interview. But “this is a case that prov ides  a road map” for a future court action.

“All I can say is that we are reviewing the opinion and considering our options with our clients about any possible path forward for our arguments,” Daniel Suhr, one of the lawyers from the Liberty Justice Center, a Chicago-based libertarian legal nonprofit that also represented the plaintiffs, said in an email.

The plaintiffs had filed suit against the state, Secretary of Education Dan French, the State Board of Education and the school districts the families live in, though the school districts were dropped from the case when it was appealed to the state Supreme Court.

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In arguing for statewide school choice, the plaintiffs’ lawyers argued that the state’s tuitioning policy constitutes “discrimination on the basis of locality,” the Supreme Court decision summarizes. Such discrimination, the lawyers argued, is prohibited under the Education Clause of the Vermont Constitution. They also contended that under the constitution’s Common Benefits Clause, the burden was on the state to “establish the interests the state seeks to achieve via the challenged law.”

In rejecting the parents’ claims, the court also left a door open.

“We conclude that Vermont children do not have a right to attend the school of their parents’ choice at the state’s expense under the Education Clause,” the decision says. “Considering the Common Benefits Clause, we concluded that in order to have a viable legal claim for denial of equal educational opportunities, parents must show that providing school choice at the state’s expense leads to a substantial difference in educational opportunities.”

The court’s ruling builds on the Brigham decisions of the 1990s, when the court held that “the state must ensure substantial equality of educational opportunity throughout Vermont.” The Brigham decisions found that the wide disparities in funding around the state were unconstitutional and led to Act 60, the 1997 law that created a state education fund and a statewide school tax system.

The court in Brigham called education “a fundamental obligation of state government,” and expanded on that statement in the Vitale ruling.

“We expressly hold now what has only been implicit before: Vermont children have a fundamental right to education under the Education Clause of the Vermont Constitution,” the Vitale decision says.

The state allows some districts to use school choice as a means to provide education, the decision says.

“I actually think that this decision is a win,” Bucknam said. The court’s holding that “education is a fundamental right,” combined with the “road map” to a successful case leaves the way open for universal choice.

“I believe this is the first court in the country that has said, ‘If you can prove it, school choice is a right,’ ” Bucknam said.

It’s common for court cases to represent incremental steps, Bucknam said, citing the string of cases that led to the U.S. Supreme Court’s 1954 Brown v. Board of Education ruling, which held that “separate educational facilities are inherently unequal.”

Vermont’s tuitioning system has made it the target of other school choice cases over the years. Around 90 Vermont towns pay tuition for some grades. While most tuition students attend a public school or one of the four traditional academies (Thetford Academy, Burr and Burton, Lyndon Institute and St. Johnsbury Academy), between 4 and 5% of Vermont’s publicly funded students attend private schools.

The state Supreme Court ruled in 1999 that school districts could not pay tuition to religious schools absent safeguards against the money being spent for worship and religious instruction. But the state never spelled out what those safeguards might look like, and some districts had gone ahead, absent state oversight, and sent money to religious schools, some of them far out of state.

At the same time as the Vitale case, Bucknam and another out-of-state nonprofit, the Institute for Justice, filed suit in U.S. District Court in Vermont to force districts that pay tuition to pay for religious schools. That case, Valente v. French, was settled by the Carson v. Makin decision in the U.S. Supreme Court last year, which held that states that pay tuition to private schools cannot exclude religious schools.

Neil Odell, a member of the Norwich and Dresden school boards and president of the Vermont School Boards Association, said he drew two details from the Vitale decision.

“I think one is that it didn’t really settle the issue of whether our tuitioning system is a violation of our Common Benefits Clause,” Odell said in a phone interview. “I think what the court did was laid out a claim (the plaintiffs) need to make.”

But he also restated the decision’s key sentence, that Vermont children don’t have the right to attend the school of their parents’ choice at public expense.

This issue is currently before the state Legislature, which has taken up two separate bills this year. One, H. 258, would end the state’s practice of paying tuition to private schools, except for four academies that date to the 19th century and that act as public schools for surrounding towns. The other, H. 483, would restrict how public money can be used by private schools.

Both bills are efforts to address the Carson v. Makin decision. Only H. 483 has moved on to a debate in the full House, slated to take place Wednesday.

“We would have preferred H. 258,” Odell said of the VSBA’s position, “but I think H. 483 is a good first step.”

State Rep. Rebecca Holcombe, D-Norwich, a former school principal and Vermont education secretary, said in a statement that the Vitale decision “makes clear that our obligation as a state is to equitable public education — to making sure every child has access to a good education, no matter who they are or where they live. That is why we have a single statewide education fund, which puts the wealth of our state behind every child. The decision is a reminder to us in the Legislature that our job is to protect the right of our children to equitable public education, however and wherever it is delivered.”

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