A pending lawsuit may broaden the state’s school choice options.
This week, three Vermont families filed a lawsuit in the U.S. District Court of Vermont claiming the the state’s school choice and tuition voucher program is unconstitutional.
According to current Vermont statute, a student living in a town that does not have a high school is able to apply for a tuition voucher to attend a public or private school elsewhere in the state. Religiously affiliated schools are currently barred from the program.
The complaint states that the state law denying tuition payments to families who choose to send their children to “otherwise qualified” private religious schools, while allowing payments for secular private schools, is a violation of the First Amendment’s Free Exercise, Establishment and Exercise Clauses, and the 14th Amendment’s Equal Protection and Due Process Clauses.
The plaintiffs named in the suit are Michael and Nancy Valente, of Mount Holly; Paul and Ingrid Gallo, of Rutland Town; and Steve and Joanna Buckley, of Hartland.
The Valentes and Gallos send their children to Mount St. Joseph Academy in Rutland. The Buckleys’ two sons attend New England Classical Academy in Claremont, a private Catholic school in New Hampshire.
The defendants named are Daniel French in his capacity as state secretary of education, the State Board of Education, Greater Rutland Central Supervisory Union (GRCSU), Two Rivers Supervisory Union (TRSU) and Windsor Southeast Supervisory Union (WSSU).
The families are being represented by the Institute for Justice (IJ), a libertarian, nonprofit law firm based in Arlington, Virginia, that advocates for educational choice. Most notably, IJ represented families in the recent 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.”
Earlier this month, the 2nd Circuit Court of Appeals granted an injunction in a lawsuit involving students from Rice Memorial High School in Burlington seeking access to the state’s dual-enrollment program. The state-funded program allows Vermont high school juniors and seniors the ability to take college courses with full tuition reimbursement.
The injunction, issued in light of the Espinoza case, will permit the students involved in the lawsuit to access the program while the appeal is pending.
According to Tim Keller, lead attorney for the families, “New Hampshire, Maine and Vermont are the only states in the country that do not allow families to choose religious schools as a part of their publicly funded school choice programs.”
IJ is currently mounting a similar case in New Hampshire.
David Hodges, co-counsel for the families, said Vermont’s policy “clearly” violates the Espinoza decision.
“(Vermont) has a statewide school choice policy, and anyone can participate unless the school is religious. And, it appears, that the only reason why they can’t participate is because the school is religious,” Hodges said.
Paul Gallo is an MSJ graduate and longtime advocate for the school. His daughter Lucy is a senior at MSJ.
“There is nothing wrong with sending your child to public school,” Gallo said. “There were many public school choices for us around town, but we chose Mount St. Joseph Academy for our daughter because it was the right fit for our family.”
Gallo cited the school’s small setting and high academic demands as attributes he values.
“We also felt the structure, the accountability and the moral standards were parallel with our family values,” he said.
Gallo said he believes there are “quite a few families” in the area who would send their children to MSJ if they could use a tuition voucher.
Michael Valente’s son Dominic is a sophomore at MSJ. Previously, Dominic had attended Black River High School in Ludlow, but when that school closed in June, the Valentes began exploring options.
The options available were not ideal. Some, like Green Mountain Union High School in Chester would have required a 90-minute commute both ways on two separate buses.
While Mill River Union and Rutland High schools were closer, Valente said their large sizes presented difficulties for Dominic, who has hearing loss and an auditory processing disorder.
“So when we looked at MSJ, it’s a smaller school, more intimate setting,” Valente said on Thursday. “With his hearing concerns, smaller classes is pretty much what we were told would be the best thing for him.”
This is not Valente’s first attempt to receive a tuition voucher to MSJ. He said he made the request last year, but the TRSU denied it, citing the separation of church and state.
“When we heard about the Espinosa v. Montana ruling, we decided to request again,” he said.
In July, the Roman Catholic Diocese of Burlington encouraged families from tuitioning towns to contact the Institute for Justice.
“We support a family’s right to pursue school choice, especially in the situation where a student does not have a local school option and is allowed to choose any school except a religious school,” Jeanne Gearon, superintendent of schools for the Diocese, stated in an email Friday.
Valente said he and the other families have been working with IJ for “about a month.”
The Buckleys were not immediately available to comment.
In an email Friday, GRCSU Superintendent Christopher Sell said, “At this time, I cannot comment due to the pending litigation against the State of Vermont and the supervisory union.”
TRSU Superintendent Lauren Fierman declined to comment on the lawsuit except to say that the SU would defer to the state’s guidance on the matter.
“We will do what they direct us to do,” she said.
WSSU Superintendent David Baker said he was not available to speak Friday.
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.”
Pietro Lynn, an attorney at Lynn, Lynn, Blackman & Manitsky in Burlington, called the current lawsuit “unsurprising” in light of the Espinoza case.
Lynn’s firm specializes in education law and represents about 80% of school districts in Vermont.
He said whether the Vermont Constitution permits state funds to be spent on religious schools remains an open question, as does the argument that the U.S. Constitution always trumps state constitutions.
“If there is an independent set of rules that exist within the State Constitution that are more restrictive in some ways around separation of church and state, then the Vermont courts might interpret those as being restrictive around the issue of whether public funds can support religious-oriented schools,” Lynn said, adding that he expects the state will want to take up this case.
“I would anticipate that the (Agency of Education) and the attorney general’s office will defend the case,” he said. “At a minimum, they’ll want to get clarification from the Vermont Supreme Court so that there is no ambiguity.”
“I would not be surprised if this case ends up going to the Vermont Supreme Court, and the Vermont Supreme Court holds that the Vermont Constitution is different than the United States Constitution,” he said.
In an email Thursday evening, Agency of Education spokesperson Ted Fisher declined to comment on the matter, writing, “The Vermont Agency of Education does not comment on pending litigation.”
Disclosure: Jim Sabataso is a graduate of MSJ.