By Bob Frenier

The parents and educators associated with the larger independent schools should not think the danger from the state to their schools is over. With Act 73, the education establishment banned most of your competitors from receiving state funds simply because those schools did not have 25% of their students attending on state vouchers. The legislature never said those excluded schools were doing a poor job of educating kids. The legislature never published a rationale for setting the criteria at 25%. 

Those facts should cause parents and leaders of larger independent schools to wake up and smell the obvious danger. All it takes to cut you off next year from the independent school funding law that’s been working since 1856 is a Democrat majority in the legislature and a Democrat governor willing to establish some other arbitrary rationale for defunding a school like yours. 

It is infuriating as well as tragic that this arbitrary defunding occurred just when Vermont’s public school students have been doing so poorly on state achievement tests for several years. Why cut funding for 2/3 of independent schools when less than half of public school kids test as proficient at the subjects we pay almost $30,000 per year to teach them?

The situation has caught the attention of the Liberty Justice Center (libertyjusticecenter.org) and local attorney Deb Bucknam of Walden. They see that the legislature failed to grasp that all independent schools are businesses, too, and the new law violates the VT Supreme Court precedent from 1982 that fits the current situation almost exactly (State v. Ludlow Supermarkets, Inc., 141 Vt. 261, 269, 448 A.2d 791, 795 (1982). 

In that case, the Court held that the Common Benefits clause of the Vermont Constitution was violated when new Sunday closing laws allowed convenience stores and other small private entities to remain open on Sundays, while prohibiting larger entities like Ludlow Supermarkets from selling their products. The Court said the legislature cannot arbitrarily choose which private entity receives a public benefit. 

The Bucknam/LJC legal team have concluded that the part of Act 73 limiting town tuitioning to arbitrarily selected private entities clearly violates the Supreme Court’s precedent in the Ludlow Supermarkets case. They believe that this part of Act 73 is, in fact, its weakest legal element because of the unequivocal holding in Ludlow. 

My advice to parents of independent school students is to rattle a few cages and get your school’s leaders to join the suit. The lawyers are serving pro bono and a good Vermont Supreme Court ruling will make independent schools safe from these attacks.