McClaughry: Three lawsuits that will change Vermont education

By John McClaughry

In three lawsuits currently in process, plaintiff parents ask that public funds follow their children to the school of their choice.

The impetus for those suits was the U.S. Supreme Court’s decision in the landmark case of Espinoza v. Montana Department of Revenue, announced last June. In that case the court held that if the state of Montana provided tax credits for contributions to a nonprofit organization which supported scholarships for students at independent schools, the organization could not exclude students at religious schools. The exclusion rested on the 1889 provision of the state constitution that prohibited direct or indirect use of public funds to support religious bodies.

John McClaughry

John McClaughry is vice president of the Ethan Allen Institute.

The Supreme Court held 5-4 that a tax-credit benefit that excluded religious schools violated the Free Exercise clause of the First Amendment of the U.S. Constitution. This appears to conflict with the 1999 holding of the Vermont Supreme Court that the Chittenden school district’s tuition payments to the Catholic Mount St. Joseph Academy violated the “no compelled support of religion” provision of the Vermont Constitution “in the absence of adequate safeguards against the use of such funds for religious worship.”

Plaintiffs in the first of the three pending cases argued that denying public funding of dual enrollment college credits for students at Rice Memorial High School in South Burlington is a violation of their free exercise rights. The 2nd U.S. Circuit Court of Appeals issued an injunction on behalf of the students.

In the second case, parents in Mount Holly, a tuition town, sued to have their school district pay tuition to Mount St. Joseph Academy. If they prevail, the Vermont Constitution’s “no compelled support” clause would be overridden.

In the third case, parents in Glover, not a tuition town, sued to demand the same choice of “common benefits” enjoyed by tuition town parents. They ask that their school district pay for their children to attend an approved non-religious independent school instead of their district’s public schools, in which the children have allegedly been bullied and taunted. If they prevail, all Vermont students would enjoy public tuition support to attend at least non-religious independent schools.

On April 21 the Vermont Board of Education ordered three tuition town school districts to reimburse families who paid tuition to religious schools. But, as Lola Duffort of Vermont Digger, who has followed this issue with exemplary thoroughness, observes, Vermont is facing “an evolving and murky legal landscape.”

As things stand, school districts don’t know how they are supposed to act on requests for tuition payable to both religious and non-religious independent schools.

The State Board and the Legislature have never come to grips with defining “adequate safeguards against the use of [public] funds for religious worship.” The leading — and fatuous — idea for enforcement of some such ill-defined restriction seems to be allowing the schools to self-certify. This would likely be followed by court challenges. Catholic schools, and probably all faith-based schools, believe that their faith must permeate their entire teaching program, which cannot be cleansed of religious influence.

So what’s the best solution?

Parental choice in education, among competing providers including public schools and approved independent schools with or without a faith-based purpose, is eminently desirable. The Legislature should enact it. Muddling through a multiplicity of court decisions is a poor way to make sound policy.

The State Board and Department of Education should abandon the hopeless task of requiring faith-based schools to certify their adherence to unacceptable standards.

Government support for parents to educate their children should not exclude their choice of faith-based schools. But governments should refrain from financing faith-based schools directly. Five hundred years of religions battling for control of governments, their resources, and their power to persecute their competitors, justifies maintaining the separation of church and state wisely enshrined in the Establishment Clause of the First Amendment.

Perhaps the best solution here is to give generous tax credits for contributions to nonprofit scholarship organizations, which can offer partial or full scholarships to students of faith-based and other educational programs. Fourteen states now allow such credits.

We should revitalize our constitutional “no compelled support” proscription that was totally misconstrued by the 1999 court, as perusal of the early Council of Censors reports corroborates. The framers of that proscription intended to allow citizens to avoid being forced to support ministers and religious activities professing things they didn’t believe in. Legislation introduced in the Vermont House in 2003 provided an “opt out” procedure for dissenting taxpayers, when a school district majority voted to provide that support. Unfortunately it was not acted upon.

We should finally summon the courage to say no to the political forces arrayed to defend a public school monopoly for their own benefit, and say yes to expanding benefits for the children.

John McClaughry is vice president of the Ethan Allen Institute.

Image courtesy of John McClaughry
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4 thoughts on “McClaughry: Three lawsuits that will change Vermont education

  1. We should do what West Virginia has done and allow actual non-discriminatory school choice. Parents can send their kids to Christian schools or even home school their kids without the state discriminating against them. In West Virginia the parents own the kids and decide not the state, let’s do the same here in Vermont.

    As for funding “religious schools,” we already do this, they are secular progressive atheistic evolutionary indoctrination camps that are the cause of our state being in the mess it is in. The atrocities committed by the modern secular state in the last century justify a position to return to the founding father’s methods of education where the Bible was the main textbook [at times the only] and textbooks like Noah Webster’s New England primer based on Biblical Christianity were used.

    It’s sad to see a “conservative” offering the “other side” of Vermont news buy into the modern lie of separation of church and state as defined by the ACLU and activist judges. If anyone is willing please read the First Amendment you will find no such thing as separation of church and state only a limitation and prevention of Congress making a law against religious expression. From the founding generation to the mid 20th century all across America you would find violations by congress, governors, schools, presidents, and others violating the “separation of church and state” and no one had any issues because it was understood that we had freedom of religion not freedom from religion. Our state constitution today still tells Christians to observe the sabbath under article 3. Here is an oath Vermonters elected to office long swore.

    [And each member, before he takes his seat, shall make and subscribe the following declaration, viz:

    You do believe in one God, the creator and governor of the universe, the rewarder of the good, and punisher of the wicked. And you do acknowledge the scriptures of the old and new testament, to be given by divine inspiration, and own and profess the protestant religion.

  2. Don’t forget SCOTUS ruling in Zelman v. Simmons-Harris.

    “On June 27, 2002, the U.S. Supreme Court upheld the constitutionality of Cleveland’s school choice program in the most important education decision since Brown v. Board of Education. The court’s ruling in Zelman v. Simmons-Harris removed the federal Constitution from the legal arsenal of teachers’ unions and other school choice opponents and opened the door to full vindication of Brown’s promise of equal educational opportunity for all.”

    In Sandra Day O’Conner’s concurring opinion, she determined that when a publicly funded voucher was provided to parents to choose the school the parents believed best served their children, ‘The State’s’ authority to control that funding ended at the parent’s front door.

    It’s been a long time coming. But better late than never.

    And Mr. Frenier is right. Don’t reinvent the wheel. Vermont has provided School Choice Tuition Vouchers, allowing parents to choose between public, independent, and now parochial schools. The system is already in place. Parents have been provided the Agency of Education’s ‘Average Announced Tuition’ for decades.

    The 2021-2022 Average Announced Tuition of Union Elementary Schools is $15,513.00
    The 2021-2022 Average Announced Tuition of Union 7th-12th Grade Schools is $16,842.00

    As provided in 16 V.S.A. § 822 School district to maintain public high schools or pay tuition – the provision should be expanded to include elementary school grades too. It’s just that simple.

  3. Tax credits aren’t going to cut the mustard. How much money could possibly be raised vs. how many parents would want school choice for their kids at $15,000+ per child? Besides, the process would be cumbersome, with non-profits weighing applications and picking winners and losers for their full(?) scholarships. Just give every parent a simple notification routine to follow with their local school board to allow those boards to sort out each Spring who is attending what schools the next school year. The history of this process in other states shows that most parents will want their kids to go to the local school. However, the current politicization of the curriculum with critical race theory and global warming alarmism might accelerate the exodus from government schools temporarily until the far-left indoctrination stops.

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