Campbell v. Manchester Bd. of School Directors

• Decision Date: 28 January 1994
• Docket Number: No. 92-194,92-194
• Citation: 641 A.2d 352,161 Vt. 441
• Parties: , 91 Ed. Law Rep. 224 Orland CAMPBELL, Jr. v. MANCHESTER BOARD OF SCHOOL DIRECTORS.
• Court: Vermont Supreme Court

Page 352

641 A.2d 352

161 Vt. 441, 91 Ed. Law Rep. 224

Orland CAMPBELL, Jr. v. MANCHESTER BOARD OF SCHOOL DIRECTORS.

No. 92-194.

Supreme Court of Vermont.

Jan. 28, 1994.

Motion for Reargument Denied March 17, 1994.

Charles S. Martin and Edward Wayland, Law Clerk (On the Brief), of Martin & Paolini, P.C., Barre, for plaintiff-appellant.

Peter S. Cullen and John Davis Buckley of Theriault & Joslin, P.C., Montpelier, for defendant-appellee.

Before ALLEN, C.J., and GIBSON, DOOLEY, MORSE and JOHNSON, JJ.

DOOLEY, Justice.

Plaintiff Orland Campbell appeals the decision of the Washington Superior Court denying his claim to the right of reimbursement under 16 V.S.A. § 822 for tuition expenses incurred in educating his son at St. Andrews Academy in Delaware. The superior court affirmed the decisions of the Vermont Board of Education (State Board) and the defendant, the Manchester Board of School Directors, that reimbursement is prohibited by the Establishment Clause of the First Amendment to the United States Constitution because of St. Andrews' sectarian character. We reverse.

This is the second time this case has been before this Court. Plaintiff originally attempted to appeal directly from the State Board to this Court. Defendant moved to dismiss arguing that no review of the State Board decision was available. We agreed that no review was available by way of appeal, but concluded that plaintiff could obtain judicial review by certiorari in the superior court. Campbell v. Manchester Bd. of School Directors, 152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989). This appeal is from the adverse decision of the superior court.

The Town of Manchester does not maintain a public high school. As a result, it is required to pay the tuition costs of local students to attend "an approved public or independent high school, to be selected by the parents or guardians of the pupil, within or without the state." 16 V.S.A. § 822(a)(1). The amount of tuition assistance is not to exceed "the average announced tuition of Vermont union high schools for the year of attendance ... or any higher amount approved by the electorate." Id. § 824(c).

In 1985, apparently at the instigation of plaintiff, St. Andrews Academy contacted the Vermont Department of Education for approval to educate Vermont students under the compulsory education statute, 16 V.S.A. § 1121, and for approval to receive tuition payments from towns without a public high school. The Department approved the former request but denied the latter "[b]ecause of constitutional barriers." Because of this decision, St. Andrews appears on a list of approved private schools, published in November 1987 by the Department of Education, with a notation that it is ineligible to receive school district tuition payments.

Plaintiff enrolled his son at St. Andrews Academy and applied for tuition reimbursement from defendant. Defendant sent a "Tuition Eligibility Questionnaire" to St. Andrews, and, on the basis of the response, denied reimbursement "based on its religious affiliation." Pursuant to 16 V.S.A. § 828, plaintiff appealed these decisions to the State Board which, after a hearing before a hearing officer, denied the appeal.

Although there are no obvious factual disputes, there has been only limited fact-finding in this case. Relying on the St. Andrews catalogue and questionnaire responses, the State Board found:

In this case the materials presented suggest that the St. Andrews academic program is excellent. While it requires bible study, one cannot judge from the catalogue alone the true nature and content of these courses. However, the catalogue cover features a church. The Episcopal insignia is incorporated in the school crest, and of greater relevance here, St. Andrews holds itself out as a sectarian institution. It requires participation in Episcopalian services of its students (allowing only Catholic students to substitute attendance at mass for the on campus Episcopal service). The religious aspects of its program "give focus and meaning to our community and weave together the many unique strands within it." St. Andrews Catalogue p. 21.

The catalogue also states that the purpose of the school is to provide education "of a definitely Christian character." The Headmaster's message at the front of the catalogue states "St. Andrew's is an Episcopal Church School" and amplifies that "[w]hat it does mean is that the School takes the Christian faith seriously."

Based on the facts and the standards applied by the Department of Education ¹ and defendant, the State Board found "St. Andrews to be a sectarian school" and affirmed on that basis. On certiorari, the superior court affirmed, although it was concerned that defendant had failed to hold a hearing to make a factual record. The court held that on the record presented tuition reimbursement would be unconstitutional.

Before reaching the merits of this case, we must consider one procedural issue raised by defendant. It argues that the relevant statute, 16 V.S.A. § 828, vests the approval of private schools for tuition reimbursement in the State Board so that no relief from an adverse determination is possible against an individual school board directly. Defendant relies on § 828, which states:

A school district shall not pay the tuition of a pupil except to a public or private school approved by the state board, nor shall payment of tuition on behalf of a person be denied on account of age. A person who is aggrieved by a decision of a school board relating to eligibility for tuition payments, the amount of tuition payable, or the school he may attend, may appeal to the state board and its decision shall be final.

16 V.S.A. § 828 (1989) (current, amended version at 16 V.S.A. § 828 (Supp.1993)).

We note that this argument was never addressed by the superior court, and further is inconsistent with defendant's actions prior to the superior court proceeding. See In re Twenty-Four Vermont Utilities, 159 Vt. 339, 352, 618 A.2d 1295, 1303 (1992) (failure to raise issue in administrative proceeding precludes judicial review). Defendant made the decision to deny tuition payments based on its own analysis of St. Andrews Academy, and it defended that decision before the State Board. There is nothing in the record that indicates that the State Board maintains a list of schools approved for tuition reimbursement; indeed, its decision-making process is inconsistent with the presence of such a list. ² See id. at 361, 618 A.2d at 1308 (absent compelling indication of error, statutory constructions by agency responsible for its execution is followed). The Department of Education maintains a list, but it is specifically designated as "not binding on a local school board in the exercise of its authority to determine eligibility for tuition purposes."

Irrespective of whether defendant is correct that the tuition approval decision is vested in the State Board, the second sentence clearly sets forth the appeal route, which plaintiff followed. If tuition is to be paid, defendant will pay it. Thus, the court had before it the parties with the direct stake in the outcome. Defendant has suggested no alternative route by which plaintiff could have the serious constitutional issues in this case decided. We conclude that § 828, and the certiorari jurisdiction of the superior court, provide jurisdiction for the superior court's review of the merits of the decision.

Because it is related to the substance of this case, we also address the statutory construction issue raised by defendant. Defendant reads § 828 to vest in the State Board, through its power to approve a school, the entire responsibility to determine which schools can be reimbursed consistent with the Establishment Clause. We do not believe that is a proper reading of the section. An independent school is "a school other than a public school, which provides a program of elementary or secondary education, or both." 16 V.S.A. § 11(a)(8). The term "approved independent school" is defined in 16 V.S.A. § 11(a)(20) as an independent school, which is approved under 16 V.S.A. § 166. That section, in turn, makes clear that the approval contemplated relates to approval for attendance purposes ³--that is, the school meets curricular and other regulatory standards such that children attending the school meet the statutory school attendance requirement. See 16 V.S.A. §§ 166(b)(5) (loss of approval means students are truant unless they enroll in another qualifying school), 1121 (attendance at school of children of school age required); see also State v. DeLaBruere, 154 Vt. 237, 241-42, 577 A.2d 254, 257 (1990) (discussing § 1121). Reading the sections together, as we must, we believe that a "public or independent school approved by the state board," as the phrase appears in § 828, refers to approval under § 166(b).

There is nothing in § 166(b) to suggest that the Legislature intended the State Board to review whether a particular school is sectarian. No procedures are set forth in the statutes for such a determination. Although the State Board is given rulemaking power with respect to the approval of independent schools, these rules are to relate to whether a school provides a "minimum course of study," "has the resources required to meet its stated objectives," has qualified faculty, and has physical facilities and special services that are in accord with state and federal law. 16 V.S.A. § 166(b). In fact, the State Board has issued no rules that condition approval on a school being nonsectarian. See Vermont Bd. of Educ., Manual of Rules & Practices §§ 2220-2228 (1992) (independent school approval regulations), reprinted in 3 Code of Vt. Rules 22000004 (1992). The State Board also has approved a number of sectarian independent schools pursuant to 16 V.S.A. § 166(b). See Vermont Dep't of Educ., Directory of Approved And Recognized Independent Schools in Vermont (1993). ⁴ Moreover, the...