Vermont Parents Sue to Include Religious Schools in Choice Program

Published January 1, 1997

For more than a century, Vermont has practiced a unique school choice program called “tuitioning.”The practice arose because many small communities in the state did not have their own high school and were not members of high school districts. Those communities pay tuition for their children to attend public or nonsectarian private high schools in other communities.

Until 1961, religious high schools were included in the tuitioning program. However, the Vermont Supreme Court ruled in 1961 that tuition payments to religious schools violated the U.S. Constitution’s prohibition against government establishment of religion.

That ruling was reversed in 1994 by a unanimous decision of the state’s supreme court. At least, that’s how legal advisors to the Chittenden school district board interpret the situation.

In early 1995, a small group of parents in the 200-student district had asked the school board to pay tuition for their children to attend Mount St. Joseph Academy. The board approved the request, and 15 of Chittenden’s high school students now attend that Catholic high school.

The tuition at Mount St. Joseph is $2,525 to $3,000 a year, but the school district hasn’t made any payments yet. The State Department of Education contends that religious schools cannot participate in the tuitioning program, citing the 1961 state supreme court ruling. The Department contends that the 1994 ruling applied only to the individual student bringing that case, which required the Manchester, Vermont school district to reimburse the tuition expense of a Manchester parent who enrolled his son at an out-of-state Episcopal boarding school.

The Department of Education is thus withholding Chittenden’s general state education aid-totalling $180,000- in an effort to bar the district from paying the tuition of students attending Mount St. Joseph.

The Institute for Justice, a Washington-based public interest law firm, is representing the Chittenden board. In August, the group sued the State Department of Education, seeking to bar the department from denying state aid to the Chittenden board. The suit also asks for a ruling from the state court on the constitutionality of paying tuition for students at private religious schools.

While the suit is pending, the State Department of Education plans to hold back payment of Chittenden’s state aid. The district will not actually lose the funds unless it sends money to Mount St. Joseph. The Chittenden board is continuing to pursue the legal challenge but has voted not to pay tuition to the Catholic school until the case has been resolved.

Two other Vermont school districts will be watching this case very closely. Parents in the Mendon school district filed suit when both the school board and the State Department of Education denied their request for public funds to pay tuition for their child to attend Mount St. Joseph. Parents in the Rutland Town school district were turned down on a similar request but have not yet gone to court.

George A. Clowes is managing editor of School Reform News. His email address is [email protected].