This article by Alex Hanson appeared on March 18, 2021 on The Valley News
The main line of defense asserted by the state of Vermont and school districts being sued for not offering school choice has roots in the Upper Valley.
The Vermont Supreme Court’s 1983 decision in Mason v. Thetford School Board contains a crystallizing sentence about the limits of school choice in the state: “There is no constitutional right to be reimbursed by a public school district to attend a school chosen by a parent.”
That sentence is central to recent court filings in Vitale v. Vermont, a lawsuit filed by parents seeking public money to send their children to independent schools, even though they live in districts that provide public schools.
The parents contend that because some Vermont communities, including several Upper Valley towns, offer school choice, mainly for the high school grades, that this is a “common benefit” under the state constitution and must be extended to all children.
They have filed suit in Orleans Superior Court in Newport, Vt., against the state and three school districts, including the First Branch Unified School District, which comprises Chelsea and Tunbridge.
In asking Judge Mary Miles Teachout to dismiss the suit, both the state and the school districts rely at least in part on the Mason v. Thetford School Board decision. That case stemmed from the desire of parents Marilyn and Lauren Mason to send their son to Richmond Middle School in Hanover instead of Thetford Academy.
The Thetford School Board denied their request, as did the State Board of Education, which held that the student’s needs could be met at Thetford Academy.
Under state law, Thetford designates Thetford Academy as its public high school and pays tuition to send its students there.
The law allows parents to request placement in another school, but leaves it up to the school board whether to grant that request: “The school board may pay tuition to another approved high school as requested by the parent or legal guardian if in its judgment that will best serve the interests of the student.”
The Vermont Supreme Court ruled that state law made the State Board of Education’s decision final and there was no recourse to the courts, before adding, “Finally, we note that there is no constitutional right to be reimbursed by a public school district to attend a school chosen by a parent.”
In the current lawsuit, the parents have responded to this assertion by saying that it’s beside the point.
“Plaintiffs do not demand the taxpayers of Vermont provide them with town tuitioning out of thin air, as the court in Mason said they had no right to,” wrote the parents’ lawyers, from the Liberty Justice Center, a conservative, Chicago-based nonprofit. “Rather, plaintiffs demand equal treatment: if the Legislature has chosen to allow town tuitioning for some students, then the education and common benefits clauses bar the Legislature from picking winners and losers and discriminating in favor of some children while denying the same opportunity to others.”
The role of the Vermont Legislature in developing education policy is also a key element of the state’s defense.
The suit should be dismissed “because whether limited public funds should be used to pay for students to attend out of district schools is a complex policy question that the Vermont Constitution does not answer,” wrote David Boyd, the assistant attorney general defending the state.
In their own motion to dismiss the suit, the school districts say they are at the mercy of the state’s policy-making authority.
“The school defendants expressly deny the allegations that they failed to provide equal education opportunities to the students involved in this lawsuit,” wrote Sean Toohey, the Burlington lawyer for the school districts.
Regardless, he continued, the suit is a dispute between the parents and the state “concerning who controls education policy in Vermont with regard to tuition. The school defendants have no authority to act contrary to the state with regard to school tuition policy, nor can they change such policy.”
As a result, the case should be dismissed because “the remedy plaintiffs seek here concerning tuition has a political, not a judicial solution.”
In addition, there were other options the parents could have pursued that could have given their children a change in school placement, the school districts argue in their defense.
But a key argument of the parents rests on the Vermont Supreme Court’s 1997 Brigham decision, which found the state’s system for funding education unconstitutional.
They assert that if the state provides tuition for some students, it must provide it for all, making it a matter of right, rather than a matter of access.
And they argue that cost should not matter when it comes to paying tuition: “There is nothing in Vermont’s education title, Title 16, that expresses an education policy goal of ‘controlling costs.’ ”
While the state argues that giving school districts the choice to either operate a school or pay tuition furthers “the goals of local control, controlling costs, and enhancing education opportunities,” the parents argue that they, not the school districts, should have that choice.
The state, in its motion to dismiss the lawsuit, also notes that a mandate for equal treatment “can be accomplished by the withdrawal of benefits from the favored class as well as by the extension of benefits to the excluded class,” which would spell the end of Vermont’s system of school choice.
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