Chittenden, VT School Choice - Backgrounder

Litigation Backgrounder

Vermont's School Choice Program:
Neutral to Religion

In Vermont's rural setting, many small towns cannot afford or simply don't have enough students to maintain a public high school. To ensure children in these towns receive a quality education, the state created a school tuition program allowing rural parents to select the private schools that best meet their children's needs. The town itself has no influence as to the school selected by the parents. After parents have chosen a school, which can include out-of-state institutions, the town then pays the tuition. The town's share of the tuition for private high schools is capped at the average cost of Vermont public high school tuition.

The participation of religious schools is critical to the success of choice pilot programs nationwide and is a common characteristic of voucher programs in Wisconsin and Ohio. Both programs are defended in court by the Institute for Justice. Vermont's state law establishing a tuition system does not distinguish between religiously and non-religiously affiliated schools. On its face, it is utterly neutral. However, recent church/state controversies have arisen.

Dr. Blane Nasveschuk, a parent from Rutland Town, unsuccessfully requested his town school board either pay directly one of his son's tuition to a religiously affiliated school or reimburse him for the tuition. Because Rutland Town does not have a public high school, Dr. Nasveschuk selected a religiously affiliated schools (Mt. Saint Joseph's Academy) for his son, Peter. Although the neighboring Chittenden Town School Board has agreed to pay tuition for a number of its students to attend the school, the Rutland Town School Board has refused to pay tuition for Dr. Nasveschuk's son. Dr. Nasveschuk appealed the denial to the State Board of Education, which concluded that reimbursement of tuition is not permitted and also said that the Rutland Board's direct payment of tuition to the school would violate the U.S. Constitution's First Amendment Establishment Clause. The Institute for Justice and Dr. Nasveschuk are currently considering what legal avenues to pursue to vindicate his right to have his son's tuition paid regardless of the religious affiliation, if any, of the school they choose for him.

In addition, Vermont's Department of Education terminated the town of Chittenden's general state education assistance because the Chittenden school board did not rescind its policy of including religiously affiliated schools among the public and private high schools for which it pays its students' tuition. The Department of Education denied their state general aid effective September 1, when the first payment would normally be sent out. (State aid represents about 10 percent of Chittenden's school budget.) If Chittenden rescinds the policy of allowing parents to select religiously affiliated schools and pay for them with their share of state funds, the flow of aid will be restored.

The Chittenden families wishing to send their children to Mt. Saint Joseph's Academy, however, will have to transfer their children to a non-religiously affiliated high school to have their tuition paid, or keep them enrolled at the academy and forego any tuition payment. The Institute for Justice also represents the town of Chittenden Town School Board in its legal efforts to prevent the cutoff of state educational funds and to allow parents to use those funds at religiously affiliated schools if they so choose.

As mentioned before, Vermont's tuition statute does not distinguish between religiously and non-religiously affiliated schools. The discriminatory exclusion of religiously affiliated schools originated with a 1961 court ruling that was undercut in 1994. Prior to 1961, Vermont school boards using the tuitioning procedure regularly paid tuition to religiously affiliated schools. In 1961, however, the Vermont Supreme Court ruled that it violated the federal Establishment Clause to pay tuition for children attending religious schools.

In a 1994 lawsuit brought by a parent denied tuition reimbursement by his school board, the Supreme Court of Vermont ruled that tuition reimbursement was constitutional. Viewing this as "the precise question in Swart" [the 1961 decision], the court found that Establishment Clause jurisprudence had "evolved greatly since 1961 and in directions unpredictable at that time."

The Establishment Clause cases it discussed in finding this great jurisprudential evolution include several of those that the Institute for Justice relies on in its school choice litigation. These include:

Lemon v. Kurtzman--In this case, the U.S. Supreme Court applied a three-part test to determine whether state action violates the First Amendment's prohibition against establishment of religion: (1) whether the action has a "secular" purpose," (2) whether its "primary effect" is to advance religion, and (3) whether it creates "excessive entanglement" between the state and religious institutions.

Mueller v. Allen-The Court upheld Minnesota's income tax deduction for educational expenses, including private school tuition.

Witters v. Department of Services for the Blind-The Court unanimously upheld the use of public funds by a blind student pursuing a divinity degree in a religious college.

More recent U.S. Supreme Court cases than those cited by the Vermont Supreme Court have further developed and consolidated this evolution. Among these cases are:

Zobrest v. Catalina Foothills School District-The Court ruled that the First Amendment does not forbid the use of public funds to provide an interpreter for a deaf child attending a Catholic high school.

Rosenberger v. Rector-The Court upheld the use of student funds for a religious publication at the University of Virginia on the grounds that non-religious activities also received assistance.

Ignoring the Vermont Supreme Court's recent, explicit rejection of the analysis and outcome of its 1961 decision and its emphasis that tuition reimbursement does not violate the Establishment Clause, the Vermont Department of Education still works to limit the educational choice and parental control of rural children's education. In response to the 1994 decision, the Department of Education concluded that the statute involved does not permit tuition reimbursement by a school board, only direct payment to the school on behalf of the family, a form of payment not addressed by the Vermont court, and which the Department views as still controlled by the 1961 decision.

The Institute for Justice's effort will be directed at using the Vermont courts to reverse the Department's attempt to limit school choice in this manner. To exclude religious schools when all other schools, public and private, can participate on an equal basis is to discriminate against religion and in favor of non-religion. This the Constitution forbids as surely as it forbids government to discriminate in favor of religion.

For more information, please contact:

John Kramer
Director of Communications
Institute For Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
(703) 682-9320

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Institute for Justice
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