School choice advocates are preparing to go to court over new rules restricting the number of private schools eligible for publicly funded tuition.
Certain school districts in Vermont do not operate schools. Instead, they pay for families to attend the public or independent school of their choice in a practice often called town tuitioning. As part of a sweeping education reform law, Act 73, passed earlier this year, lawmakers enacted much stricter rules about where families can go with those vouchers.
Deborah Bucknam, a Walden-based attorney, is now laying the groundwork for a legal challenge. Emails circulating in tuitioning districts tell parents “Don’t Lose Hope!” and encourage them to reach out to Bucknam to become involved in a forthcoming lawsuit. The new rules violate the state constitution's common benefits clause, the emails say, and “a group of lawyers who support Vermont school choice” are preparing to sue.
Bucknam declined an interview, and would not say who else is involved. She wrote in an email that she did not “at this time have the liberty to speak about any lawsuit.”
But she added that she had read transcripts from the deliberations of lawmakers and had been “shocked” that “there was virtually no discussion, let alone focus, on Vermont’s schoolchildren, who have suffered, particularly since COVID, under an education system that serves them poorly.”
It is not the first time Bucknam, a well-known entity in conservative Vermont politics, has challenged restrictions to school choice in court. In 2020, with the help of the Liberty Justice Center, a national libertarian law firm, Bucknam represented parents who were suing Vermont to expand access to vouchers statewide. But her argument then — that the state’s rules limiting the use of vouchers to school districts without public schools violated the common benefits and education clauses of the Vermont constitution — got little traction. A superior court judge dismissed the suit, and the state Supreme Court unanimously upheld that decision.
Peter Teachout, a professor at Vermont Law and Graduate School who specializes in constitutional law, sees parallels between the prior litigation and the challenge being prepared today. And he thinks the outcome will be the same.
In that case, the court “squarely rejected” that all students are entitled to a publicly funded private school education, Teachout said. Instead, the court said the constitutional standard was that every child “ought to be entitled to substantially equal educational opportunity.”
Proving that this equal opportunity is lacking under these new rules will be hard to do, he said, and “the burden is on the plaintiffs — the challengers — to show that the lines drawn by the state are unjust and unreasonable.”
My perspective was: How do you address that growth into areas where public tuition was never meant to be a thing?Sen. Scott Beck
The new Act 73 criteria, which took effect July 1, prohibit the use of vouchers at out-of-state private schools, schools where fewer than 25% of students were previously publicly funded, and schools that are located in districts that operate public schools for all grades.
Not including therapeutic schools, which are not subject to the new criteria, only 18 private schools made the cut, according to a list published by the Vermont Agency of Education. Well over half of all previously eligible private schools are now excluded, although this could impact a relatively small number of students. The schools that remain eligible are also those that have typically served the vast majority of the state’s publicly tuitioned students.
Senate Minority Leader Scott Beck, a Caledonia County Republican who played a key role in negotiating the new eligibility rules, argues that tuitioning to independent schools was historically allowed where there were no public options. The stricter criteria included in Act 73, he said, were intended as proxies for whether or not a private school was actually filling a void.
“My perspective was: How do you address that growth into areas where public tuition was never meant to be a thing?” he said.
Lawmakers have to draw the line somewhere when they’re deciding who is eligible for any kind of public benefit, Teachout said. If they had proposed, for example, that “only schools that have a gerbil as a school mascot” remain eligible, he said, “those would be arbitrary lines.”
“But the lines that the Legislature drew in coming up with Act 73 seem to me rationally related to legitimate kinds of legislative considerations,” he said.
