Three lawsuits now in progress are likely to expand parental choice in Vermont education. Rather than dealing with “an evolving and murky legal landscape”, the legislature should reform our laws to incorporate the new legal requirements into a well-conceived parental choice - provider competition model. 

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.

            The 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 Mt. 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 Circuit Court of Appeals issued an injunction on behalf of the students.

            In the second case, parents in Mt. Holly, a tuition town, sued to have their school district pay tuition to Mt. 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 State 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 (www.ethanallen.org). He has been vice chair of the Senate Education Committee.