By Jim Sabataso
Staff Writer
A ruling by the State Board of Education has opened the door for public tuition dollars to be used at private religious schools.
At its regular meeting Wednesday, the board ruled that tuition requests made by several Vermont families for the 2020-21 school year must be paid.
Last month, the board heard appeals from four families whose tuition requests had been denied by their local school districts.
The districts named in the appeal were the Rutland Town School District, which is part of the Greater Rutland County Supervisory Union; the Ludlow-Mount Holly Unified Union School District, which is part of the Two Rivers Supervisory Union; the Hartland School District, which is part of the Windsor Southeast Supervisory Union; and the Mount Ascutney School District.
The Ludlow-Mount Holly appeal was ultimately rendered moot after the district reconsidered its decision and opted to pay the tuition request last month.
Two of the appeals requested tuition reimbursement to Mount St. Joseph Academy in Rutland. The other requests were for New England Classical Academy, a private Catholic school in Claremont, New Hampshire; and the Kent School, a private school in Kent, Connecticut affiliated with the Episcopal Church.
Three of the four families making appeals were represented by the Institute for Justice (IJ), a libertarian, nonprofit law firm based in Arlington, Virginia, that advocates for educational choice.
The fourth family represented itself.
Most notably, IJ represented families in last year’s U.S. Supreme Court case, Espinoza v. Montana Department of Revenue.
In that case, the court ruled in a 5-4 decision on behalf of the families. In the court’s opinion, Chief Justice John Roberts wrote that, “(a) State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
David Hodges, who represented the families, praised Wednesday’s ruling.
“I think that the State Board sends a very strong signal that school districts may not discriminate based on religion, which is something that was unclear to a lot of school districts in Vermont. So that’s going to be a big change for students seeking tuition reimbursements next year,” said Hodges.
In Vermont, a student living in town without its own high school is able to apply for a tuition voucher to attend one elsewhere. For a student tuitioned at a public school, a town pays the receiving district the equivalent of that district’s average per pupil costs. For private schools, a student receives a voucher worth up to the average announced tuition for Vermont public schools or the private school’s tuition, whichever is less. For the 2020-21 school year, the average announced tuition for grades 7-12 is $16,233.
The last push to allow private religious schools to participate in state school choice programs happened in the mid-1990s when the Chittenden School District in Rutland County approved tuition vouchers to MSJ for 15 Barstow Memorial School students. Litigation ensued before any payments were made.
In that case, Chittenden Town School District v. Department of Education, in 1999, the Vermont Supreme Court ruled that the Vermont Constitution prohibits a municipality from reimbursing the tuition of students who attend a “pervasively sectarian school” without “adequate safeguards” to prevent the use of public tuition money for religious worship or instruction.
Since then, religiously affiliated schools have been excluded from the state tuition voucher program despite the fact that the though the state never defined what those safeguard might be.
In a statement released Wednesday, Board Chairman John Carroll, said the appeals “required the Board to harmonize, to the best of its ability, the requirements of the federal and state constitutions.”
The decision noted there was no evidence in the record showing that the schools in question were asked to certify that public tuition dollars would not be used to “fund religious worship or religious instruction.”
In the board’s assessment, excluding the appellants’ requests would essentially be discriminatory.
“These districts have granted tuition requests to some schools and denied them to others,” the ruling states. “There is no evidence that these or any schools were asked to make a certification regarding their use of funds or to attest to any other safeguards. Requiring only these three schools to make a retroactive certification regarding the use of public funds for the 2020/21 school year could be viewed as discriminatory. The Board’s order in these cases is therefore narrow: that the tuition denials be reversed and the tuition payments made.”
The ruling concludes with the caveat “that this is not a rulemaking proceeding and it cannot, in this context, provide any binding direction to school districts,” adding that “constitutional questions remain unsettled.”
Hodges said the ruling will be “useful for future arguments over this issue in federal court,” including a nearly identical case involving a student at Rice Memorial High School in Burlington that is currently before the Second Circuit Court of Appeals.
Paul Gallo, one of the plaintiffs whose daughter attends MSJ, said the ruling opens up more educational opportunities for families.
He said he knows of other local families that plan on applying for vouchers to MSJ next year.
Gallo added that the ruling is a win for the school, which has struggled to grow its enrollment in recent years.
“(The school) is in the fabric of the community and it must continue,” he said. “It should be available to everyone.”
Pietro Lynn, an attorney at Lynn, Lynn, Blackman & Manitsky in Burlington who specializes on education law, called the ruling “unsurprising.”
“What I expect is that public schools throughout the state will send tuition without any conditions,” he said, explaining that the Espinoza decision effectively compels them to do so.
As such, Lynn said it’s unlikely there would be future lawsuits over public schools supporting religious institutions.
“It’s possible, but I think it’s unlikely,” he said.
And while the ruling is a victory for school choice advocates, Lynn doesn’t foresee a flood of tuition requests, noting that “we’re talking a really small group.”
“It’s different than the guidance that existed before … but I don’t know that it’s going to fundamentally change the landscape in Vermont,” he said.
Disclosure: Jim Sabataso is a graduate of MSJ.
jim.sabataso @rutlandherald.com
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