The battle over whether public funding should follow students to private schools has reached a new phase in the Twin States.
In Vermont, four families backed by a conservative legal organization have filed suit against the state and their public school districts to try to gain access to the tuition program that allows some towns to send students to private schools.
The families, including one in Chelsea, assert that allowing some children to attend the school of their choice while denying that right to other children is a violation of “the right to equal educational opportunity” found in the Vermont Constitution.
In New Hampshire, Gov. Chris Sununu recently told an audience at a free-market think tank that the novel coronavirus pandemic has turned over fresh ground in which to plant education savings accounts — a twist on a voucher program giving out public funding that families could take to any school.
“We have great public schools here, but there are 1, 2, 3, 4% of the population where it’s not ideal. And so to give them that opportunity is huge,” Sununu told an audience gathered by the Josiah Bartlett Center for Public Policy last month, according to an audio recording of his speech. “Now, do we take that model and expand it even beyond what we were trying before? I think there’s going to be a lot of aggressive action to do so.”
At the same time, New Hampshire has accepted $46 million in federal funding intended to double the number of charter schools, which are publicly funded but run by independent groups separate from the school district. And that’s taking place against the backdrop of declining enrollment, a phenomenon that Sununu said should lead some public schools to consolidate.
The ongoing effort to channel public funds to students at private schools has received a push at the national level, from such figures as former Education Secretary Betsy DeVos, and from conservative legal groups.
Lawsuits in Vermont A lawsuit filed last month in Orleans County Superior Court, in Newport, Vt., has the backing of the Liberty Justice Center, a Chicago nonprofit legal organization that brought the Janus v. AFSCME suit. Victory before the U.S. Supreme Court in Janus in 2018 ended the practice of public-sector unions requiring employees who served under union contracts to pay union dues.
Vermont lawyer Deborah Bucknam, who ran unsuccessfully as a Republican for state attorney general last year, is part of the legal team, but she referred questions to the Liberty Justice Center, which has a team of two lawyers, Brian Kelsey and Daniel Suhr, who take on school choice cases around the country. Kelsey is a Republican state senator in Tennessee. Suhr is the former policy director for Scott Walker, the former Republican governor of Wisconsin.
Vitale, et al., v. Vermont was filed on behalf of three families who are sending their children to independent schools and who argue that the state should pay tuition for all students. The families who filed suit argue that the public schools haven’t served their children well.
L.V., the son of Sara and Louis Vitale, of Athens, Vt., was born with multiple medical issues, and Grafton (Vt.) Elementary School “treated L.V. as if he were a nuisance and not a child,” the lawsuit contends. The Vitales, and one of the other families in the suit, Brianna Schaefer, a single mother, live in a school district that doesn’t designate a school for seventh and eighth grades. L.V., and Schaefer’s son, W.S., attended the independent Compass School for seventh and eighth grades, where they were accommodated and felt a part of the school community, the lawsuit says.
But the towns of Athens and Grafton are part of the Bellows Falls Union High School District, which means it doesn’t pay tuition for the high school grades. “Introducing L.V. to the loving environment and educational resources available at Compass School for free for two years and then ripping that benefit away was cruel and inhumane,” the lawsuit says.
Marisa and Benjamin Trevits, of Glover, Vt., whose child, identified as R.T., was bullied at the K-8 Glover Community School for being transgender. The Trevitses asked the Lake Region Union Elementary-Middle School Board to pay tuition to send R.T. to another school; the board refused. The Trevitses are paying tuition to send R.T. and his twin sibling to Thaddeus Stevens School, an independent school in Lyndon, Vt.
In Chelsea, Fredrick and Cindi Rosa’s daughter, E.R., has a speech delay and struggled with bullying at Chelsea Public School. The school district was not responsive, the lawsuit says, and after second grade her mother home-schooled her for the next two years. But Cindi Rosa had to stop home schooling when her mother became ill. The Rosas petitioned successfully to move her to Tunbridge Central School, the other K-8 school in the First Branch Unified District. Some of the same bullying issues resurfaced, the lawsuit says, and the Rosas would like to send E.R. to an independent school.
Jamie Kinnarney, superintendent of the White River Valley Supevisory Union, which includes First Branch, referred a reporter to Sean Toohey, the Burlington-based lawyer representing the district. Toohey didn’t return an email message seeking comment. The Liberty Justice Center said the Rosas didn’t want to speak to a reporter about the lawsuit.
The lawsuit refers to “town tuitioning” as a “common benefit,” though it also notes that it applies only to 17% of Vermont students. “This is an exceptional benefit ... provided to only some students,” Kelsey, the Tennessee-based lawyer, said in a phone interview.
While most of Vermont’s roughly 80,000 students go to public schools, the state has maintained a system since the 1800s under which towns that didn’t have their own schools pay tuition for students to attend schools in other towns, particularly high schools, which were fewer, farther between and more expensive to operate.
Initially, this system was meant to ensure access to education, a right enshrined in the Vermont Constitution. Over the past 40 years, however, the system has been recast as a form of school choice, a period that has overlapped with the establishment of many independent schools that rely on public tuition payments.
Several Upper Valley towns have long maintained access to what is essentially a voucher program that pays the full cost of attendance at any public school or one of the state’s traditional academies, which include Thetford Academy, or pays the statewide average tuition to any other non-sectarian school. Hartland, Weathersfield, Sharon, Corinth and Tunbridge are not part of a union high school district and so pay tuition to send their high school students elsewhere. Strafford designates Thetford Academy as its high school, but the Strafford School Board grants waivers that allow students to go to other schools, mainly Hanover High and The Sharon Academy, an independent 7-12 school in Sharon.
The independent schools mentioned in Vitale v. Vermont, the Compass School in Westminster, Vt., and the Thaddeus Stevens School, were both founded in the 1990s, as were The Sharon Academy and Crossroads Academy, an independent K-8 school in Lyme. At the time, Vermont and New Hampshire schools faced record enrollment.
Since then, each state has seen enrollment decline by more than 20,000 students, and pressure on the state to expand choice has increased. And under Act 46, Vermont’s 2015 school consolidation law, some districts have added choice. Chelsea, for example, used to operate a K-12 school, but now pays tuition for high school students, joining Tunbridge in that practice.
Vermont also is facing two federal lawsuits, one of which demands that the state pay tuition for religious schools, and the other of which demands that the state open its dual enrollment program to students attending religious high schools. The former, Valente v. Vermont, includes a Hartland family who wants the state to pay tuition to New England Classical Academy in Claremont, which on its website says it is “rooted in the Catholic faith.”
The Vitale case is much broader than the federal lawsuits, said John Carroll, a Norwich resident who is chairman of the State Board of Education.
Carroll noted that there are two possible remedies for the Vitale suit: The state could expand school choice, or it could do away with it.
“I come from a philosophical perspective that competition is good and is healthy as a general principle,” said Carroll, a former state senator who called himself “a classic Vermont Republican.” At the same time, he said, applying that principle without nuance would mean public schools in competition with other types of schools would have a hard time knowing how many students they’d have, which would make it hard for them to plan and to be efficient.
“There is no easy answer,” Carroll said.
New Hampshire debate New Hampshire is facing its own debate over expanding school choice. At the moment, few districts in the state offer tuition programs. In the Upper Valley, Cornish, Piermont, Lyme and Croydon pay tuition for secondary school grades.
State lawmakers voted down in 2018 a previous effort to expand choice by creating education savings accounts for all New Hampshire students, but Sununu said he sees this year as a better chance to win approval for the so-called ESAs.
“People that traditionally weren’t involved in this discussion are stepping up and saying, wait a minute, where’s my money going? Why isn’t my kid in school? Why are we stuck remote learning, when we know that we can and should be having our students in school, at least in some facet, even with the high COVID numbers, the fact that we don’t have outbreaks, and they’re getting involved in this discussion about where their money — not our money, their money — is being spent and how it’s being spent,” Sununu told the Josiah Bartlett Center audience last month.
A new ESA/voucher bill has been introduced in the Legislature, according to Rep. Linda Tanner, D-Georges Mills, and it might suffer the same fate as the bill defeated in 2018.
“One of the reasons it didn’t go through was because of the cost,” said Tanner, an opponent of the bill.
While Sununu said he didn’t want the state’s public school system to “fall apart,” he acknowledged that ESAs might lead to some consolidation and that some schools should already be thinking about consolidating. He cited Berlin and Gorham, old mill towns in northern New Hampshire, as an example.
“Those two systems should be coming together to have that conversation and say, look, we might be losing population just naturally with kids. It becomes unsustainable at a point,” Sununu said.
Through his spokesman, Sununu declined an interview request last week.
Meanwhile, Education Commissioner Frank Edelblut is advancing plans to create another 28 charter schools on top of the state’s existing 32. “What we’re really trying to do is to meet the needs of individual students,” Edelblut said in an interview Friday.
New Hampshire received a $46 million federal grant to expand charter schools in 2019, but the Democratic-controlled Legislature declined to authorize spending the money. Existing charter schools aren’t full, and the state has done little to track the academic progress of charter school students, said Tanner, a former teacher in the Kearsarge school system.
Republicans now control the Legislature in Concord.
Mike Harris, chair of the board of Ledyard Charter School, which he helped to create in Lebanon as an alternative program for students struggling in traditional high schools, said some of that federal funding would be helpful. Ledyard just purchased its own building and is renovating it. It has a loan pending through the U.S. Department of Agriculture.
“We’re sort of looking forward to being summoned for a meeting with the state Department of Education,” Harris, a former school superintendent in Lebanon and other Upper Valley towns, said last week.
The state might be overextending itself a bit in trying to approve so many additional charter schools, Harris said.
“I guess even as a supporter of charter schools and of the charter school model, that sounds a bit excessive to me,” he said.
Alex Hanson can be reached at ahanson@vnews.com or 603-727-3207.