The forced remote learning fiasco imposed on Vermont public school students this past year highlighted the lack of common benefits available from the state’s education system.
In September, 2020, more than 80% of government schools offered only hybrid or remote learning in response to COVID 19. Even as late as March, 2021, only one third of government schools were fully open and 37 of them remained closed entirely. But students from “sending towns” had school choice and easily found independent schools that would accept tuition “vouchers” to provide in-person instruction, starting in September 2020 and continuing to the present with no untoward COVID infections.
Of course, for 150 years before the pandemic, Vermont law said parents in those sending towns could send their kids to virtually any school in the world, while most other parents had to make do with the local government school, regardless of its adequacy. The pandemic has just made this violation of Vermont’s constitutional commitment to providing common benefits to all its citizens more apparent and less possible to sustain politically and legally.
The unequal educational options exposed by the pandemic also failed to meet the standard set forth in the Vermont Supreme Court’s 1997 Brigham v. State decision, which requires each Vermont child be provided a “substantial equality of educational opportunity” and the “mere fortuity of a child’s residence” cannot diminish the state’s obligation to provide it.
This past December a group of parents from “no choice” towns set out to protect their kids from the impact of these long standing, pre-COVID constitutional violations. They filed a lawsuit in Vermont courts to overturn the requirement that children attend whatever government school exists in their local district, regardless of the individual educational needs of each child. By the time the courts rule on this suit, the pandemic will likely have passed into history and every child will be taught in person. But the fundamental injustice will remain until the court speaks: some kids—based solely on the “mere fortuity of their residence”—will be able to attend the schools that work best for them but most must attend whatever school is available locally. The shocking number of government school students who can’t pass the state achievement tests every year makes plain this inflexible situation has real impact on many children’s lives.
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