On July 7, 2022

Decision in Maine case points toward universal school choice

By John McClaughry

Editor’s note: McClaughry is vice president of the Ethan Allen Institute, a policy research and educational nonprofit organization promoting principles of free enterprise, a constitutional and limited government, and individual liberty.

The U.S. Supreme Court’s June 21 decision in the Maine pupil tuitioning case (Carson v. Makin) brings to a head a long-simmering issue in Vermont education: Under what circumstances, if any, may public money find its way into sectarian elementary and secondary schools?

Like Vermont, Maine has many lightly populated school districts that do not contain a public secondary school. For over a hundred years, Maine and Vermont law has allowed such districts to tuition secondary and sometimes elementary school pupils to schools of their choice, even schools in other states or abroad. In Vermont, some 7,000 K-12 pupils benefit from tuitioning.

But in both states, public tuition payments may not flow to sectarian schools, even those (in Vermont) approved by the Agency of Education as acceptable for health, safety and educational curriculum.

In a landmark case decided in June 2020 (Espinoza v. Montana), the Supreme Court held that excluding sectarian school pupils from tax credit-funded scholarships infringed the pupils’ First Amendment right to freedom of speech. That decision stopped short of requiring that, if the government supplies funds to some pupils to attend sectarian schools, it cannot discriminate by withholding the same common benefit from all pupils wanting to transfer out of public schools.

Last week’s decision moves much closer to that sweeping requirement: All parents — not just tuition town parents — must be given their choice of approved public schools, nonsectarian independent schools, and sectarian independent schools.

There are at least three cases in the Vermont courts that will be affected by the Maine decision. Two of them are brought by parents in tuition towns that want their children to attend Roman Catholic schools. The Maine decision seems likely to settle their cases in their favor.

A third and more sweeping case (Vitale v. French) was brought by parents of pupils who do not live in tuition towns, but who allege very bad — indeed, disgraceful — treatment by the public schools to which they were assigned according to their school district of residence. The parents want their children to be tuitioned to more welcoming independent schools.

Counsel for these parents argues that the Vermont Supreme Court, in the Brigham case (1997), held that education is a “common benefit” under the Vermont Constitution, and must be made available to all children regardless of geographic residence.

Affirming a right of dissatisfied parents to enjoy that benefit would of course end the public school monopoly. School districts could still operate approved public schools, but all pupils residing in those districts would also have the choice to attend any public or approved independent school, sectarian or nonsectarian, at public expense.

Critics of tuitioning pupils to sectarian schools will of course raise a conflict with the “no compelled support of religion” clause of the Vermont Constitution. Contrary to what the Vermont Supreme Court held in the Chittenden case in 1999, that provision does not forbid a school district from tuitioning pupils to sectarian schools; it only creates an individual’s right not to be taxed to pay for religious instruction that goes against the taxpayers’ beliefs.

In 2003, Rep. Harvey Otterman of Topsham, a former president of the Vermont Bar Association, introduced a bill to create the machinery for those requesting rebates. Needless to say, it didn’t get as much as five minutes of consideration.

The four powerful public education lobby groups — the Vermont School Boards Association, Vermont Superintendents Association, Vermont Principals Association and the Vermont-NEA teachers’ union — are excruciatingly aware of the direction in which these court decisions seem to be heading. Last Feb. 23, they joined in a letter to the Senate Education Committee that can be summarized as “Fund Only Public Schools!”

Now that the Supreme Court has heightened the threat to their K-12 pupil monopoly, these interests will urge the Legislature — desperately — to protect it, even if necessary by ending the tuitioning program that has served Vermont well since 1869 (and replacing it with what?).

Hopefully, the Legislature will be able to rise above defending the powerful vested interests that have prospered from the public school monopoly, and focus on what’s best for Vermont’s 83,000 K-12 pupils.

The most detailed forward-looking alternative for Vermont is described in the report of the 14-member Commission on Rebalancing Education Cost and Value (2009). Its basic recommendation is “to empower parents to choose the most suitable educational program for their children, (from among) a wide variety of providers, striving to attract customers by offering them a product they want.”

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