SUNDERLAND — Faced with a Supreme Court decision that potentially threatens state funding of the independent high schools where it sends its children, the Taconic & Green Regional School District Board has committed to “a full range of actions” and formed a subcommittee to address the problem moving forward.
The board unanimously endorsed the motion in reaction to Vermont Education Secretary Daniel French’s directive that tuition requests for approved independent religious schools “must be treated the same as requests for tuition payments to secular approved independent schools or secular independent schools that meet educational quality standards.”
The motion, board member Dick Dale of Londonderry said, “is a proposal that seeks to explore a gazillion opportunities to respond. ... There are so many potential initiatives and challenges. All of them apparently different. All of them with problems.”
In the board’s motion, which passed unanimously, it committed to “deal with any Vermont School Board Association resolutions limiting the use of public funds for independent schools, determining the constitutionality of… Secretary French’s guidance, designation of schools by our district, seeking enforcement of Agency of Education Rule 2200 by the state, and calling a special school district meeting to decide how we should proceed.”
Volunteering for the subcommittee were board chairman Herb Ogden of Mount Tabor, Dick Dale of Londonderry, Jim Salsgiver of Dorset, David Chandler of Dorset, Leigh LoPresti of Danby, and student member Kaitlyn Cherry of Burr and Burton Academy.
FEDERAL DECISION, STATE IMPACT
The Vermont Agency of Education set the tuition payment policy in September, three months after the U.S. Supreme Court ruled in Carson v. Makin that states may not withhold school choice tuition payments from religious schools.
That decision, combined with Article 3 of the Vermont Constitution — also known as the “compelled support clause,” which bars state funding or endorsement of religion — has led some to conclude the only way for the state to comply is to end public payments to independent schools entirely.
That would directly threaten areas of the state where independent schools are the de facto public high school — namely, Burr and Burton Academy in Manchester, Long Trail School in Dorset — as well as non-operating districts that tuition all of their students, such as Sandgate, Stratton and Winhall.
Whether the Legislature or the Agency of Education would take such a step remains to be seen, as other options are being explored.
“We’re going to see a number of different proposals,” Sen. Brian Campion, chairman of the Senate Education Committee, said Wednesday. “Everyone is going to be open to all sorts of ideas that can pass constitutional muster.” He expects work to begin on the problem as soon as the 2023-24 biennium opens.
A bill proposed by Campion, S. 219, which passed the Vermont Senate in March, would have prohibited religious schools from using state funds to promote religion, or receiving funds if their policies contradict state anti-discrimination policies. The state House declined to take up the bill, a decision Campion says in hindsight was a mistake.
“This is a big issue. I think most Vermonters are going to want to keep public dollars away from religious institutions. That’s been our history, as a state and as a country,” he said. “The Supreme Court has put us in a tricky spot — we’ve got to try to figure out a solution.”
THE MAINE PROBLEM IS ALSO VERMONT’S
In the Supreme Court decision, Carson v. Makin, the plaintiffs challenged Maine’s refusal to pay school choice tuition to religious schools. Maine, like Vermont, has relied upon independent schools to educate rural students in communities not served by public high schools.
The plaintiffs in Carson v. Makin challenged a provision in Maine law prohibiting those public tuition funds from going to religious schools on the grounds that it violated the free exercise of religion clause of the First Amendment.
“The State pays tuition for certain students at private schools — so long as the schools are not religious. That is discrimination against religion,” Chief Justice John Roberts wrote in the majority opinion. “Regardless of how the benefit and restriction are described, the program operates to identify and exclude otherwise eligible schools on the basis of their religious exercise.”
Complicating matters: Article 3 of the Vermont Constitution states that “no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience.”
ALTERNATIVES
Tuesday night, the T&G board discussed whether the Series 2200 administrative rules set by the State Board of Education could be tightened to raise expectations of what an independent school must do to qualify for state funding.
The board also discussed whether it could change its relationships with independent schools by enlisting them as contractors — under terms that would make the district’s expectations for instruction, inclusion and non-discrimination explicit. Salsgiver said experts recommended such polices remain silent on the question of religious instruction.
The Burlington School District has proposed a motion for the upcoming conference of the Vermont School Board Association, asking that the organization “advocates that all rules, regulations, policies, quality standards, reporting requirements and laws regarding public schools in Vermont must apply to any school that receives funds from the statewide education fund, for any reason or for any purpose.”
“Diverting public school tax dollars to private and independent schools creates a circular problem where fewer funds are being invested in public schools; which in turn causes a reduction in the quality of education in our public schools,” the Burlington resolution says.
Clare Wool, who chairs the Burlington School Board, did not reply to an email asking how Manchester-area schools and families should interpret the resolution’s intent.
Salsgiver, reporting on a webinar held Sept. 20 by numerous Vermont school governance organizations and the Vermont NEA, said one possible avenue is contracting with independent schools rather than paying tuition.
But he said speakers warned, “You have to avoid any pretext — a court is never going to like it if you’re doing this wonderful thing for our kids but it really looks like the fact you might not want to pay for a certain type of school.”
Another option would be beefing up the requirements and enforcement of the Series 2200 administrative rules, which address what makes an independent school eligible for public tuition dollars.
“If schools and districts around Vermont get a lot more demanding what Rule 2200 says and how it’s applied, then we can end up accomplishing a lot,” Salsgiver told the board. “We’re not necessarily talking about just dealing with religious schools, but saying we have certain expectations because we’re responsible for our kids 9-12. And we can say something a little more clearly as to what we expect.”
That said, other than an anti-discrimination clause added in July, “there’s no real effort to beef up 2200 more than what they already added,” Salsgiver said. “So this is essentially us saying districts around the state we ought to get involved in an effort.”
“If we don’t beef up 2200 then we may be left with this really stark alternative,” Ogden added.