Vermont parents whose children will no longer be able to attend a private Catholic school on the taxpayers’ dime are asking a court to strike down the 2025 law that limited their access to state-funded tuition.
Act 73, signed into law by Republican Gov. Phil Scott last July, is a historic reform initiative that seeks to change the way Vermont pays for and governs public schools. It also reimagines the role of private schools, also referred to as independent schools, in the public education system.
Those provisions are the target of a new lawsuit by a national legal group seeking to restore a school-choice framework that was pared back by the new law.
The Liberty Justice Center filed a civil suit in state court Monday that takes aim at what it calls “drastic and unprecedented new restrictions that cut off access to dozens of schools throughout the state.”
“Parents and children across Vermont will suffer catastrophic and irreparable harm if Act 73’s challenged provisions are allowed to go into effect,” the lawsuit alleges.
The plaintiffs in the case are two parents from Georgia whose high-school-age children attend Rice Memorial High School in South Burlington, which, under Act 73, is no longer eligible for public tuition money. The law allows existing students to finish out their academic careers at affected institutions while still receiving state-funded tuition. But it means the parents will have to pay more than $15,000 out of pocket annually for their younger children to attend the same high school their older siblings did.
Katie Cosgrove, a Liberty Justice Center attorney working on the case, said Act 73 violates a common benefits clause that, according to Cosgrove, requires the state to “distribute public benefits on equal terms and prohibit arbitrary exclusions.”
“Because of Act 73 … their younger children will be exempted from town tuitioning and unable to receive funds to attend the high school that their siblings are in,” Cosgrove said. “We are of the mind that it’s an arbitrary exclusion to have siblings within the same family unable to receive the same common benefits.”
Attorney General Charity Clark, who will defend the state of Vermont and Education Secretary Zoie Saunders, said she had not yet reviewed the complaint and was unable to comment on the case.
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. Act 73 enacted much stricter rules about where families can go with those vouchers.
The number of private schools eligible to receive public tuition dollars decreased from 46 to 18. Rice Memorial lost its eligibility due to a new provision requiring that at least 25% of a private school’s enrolled students be publicly funded.
The Liberty Justice Center lawsuit marks the second case brought against the state over its new private school rules. Last fall, Mid Vermont Christian School in Quechee, with the backing of a prominent conservative legal outfit called Alliance Defending Freedom, alleged that Act 73 has discriminated against religious schools by eliminating their access to public tuition.
“If you have an area where you are depopulating public schools by offering choice, that’s not creating a strong, robust education system."Cornwall Rep. Peter Conlon
Jared Carter, a law professor at Vermont Law and Graduate School, said the plaintiffs in the latest case are relying in part on a 1997 case called Brigham v. Vermont, where the Vermont Supreme Court ruled that children have a right to “substantial equality of educational opportunity.”
Brigham centered on a now-defunct school-funding system that led to property-rich towns having far better schools than poorer towns.
The Liberty Justice Center, Carter said, is trying to turn Brigham “on its head.”
“And is trying to use that as a sword to say that the state has to provide tuitioning dollars for the school of choice of the parents and the children,” Carter said. “And I don’t think the Vermont Supreme Court has embraced that conclusion, and so I think they’re going to have an uphill battle.”
The school-choice provisions in Act 73 reflect concerns among many lawmakers about the degree to which private institutions have siphoned taxpayer money away from public schools.
Cornwall Rep. Peter Conlon, the Democratic chair of the House Education Committee, recently proposed a bill that would effectively eliminate school choice in the approximately 90 communities that currently have it.
“If you have an area where you are depopulating public schools by offering choice, that’s not creating a strong, robust education system,” Conlon said earlier this month.
