Chittenden School Dist. v. Dept. of Educ., 97-275.
| Decision Date | 11 June 1999 |
| Docket Number | No. 97-275.,97-275. |
| Parties | CHITTENDEN TOWN SCHOOL DISTRICT and Cynthia Andrews, et al., Intervenors, v. DEPARTMENT OF EDUCATION and Elizabeth Sojourner, et al., Intervenors. |
| Court | Vermont Supreme Court |
John A. Facey, III of Reiber, Kenlan, Schwiebert, Hall & Facey, Rutland, and William H. Mellor, III, Clint Bolick and Richard D. Komer, Institute for Justice, Washington, DC, for Plaintiff-Appellant.
William H. Meub and Orland Campbell, Jr., of Keyser, Crowley, Meub, Layden, Kulig & Sullivan, P.C., Rutland, for Plaintiffs-Intervenors-Appellants Cynthia Andrews, et al.
William H. Sorrell, Attorney General, Mark J. Di Stefano, Assistant Attorney General, and Paul C. Fassler and Karen L. Richards, Special Assistant Attorneys General, Montpelier, for Defendant-Appellee.
Mitchell L. Pearl of Langrock Sperry & Wool, Middlebury, and Joel D. Cook, Vermont-NEA, Montpelier, for Defendants-Intervenors-Appellees Elizabeth Sojourner, et al.
A. Jeffrey Taylor, Rutland, Martin S. Kaplan and Stephen A. Jonas of Hale and Dorr LLP, Boston, Massachusetts, and Lisa Thurau, New York, New York, for Amicus Curiae National Committee for Public Education & Religious Liberty.
Present DOOLEY, MORSE and JOHNSON, JJ., and ALLEN, C.J. (Ret.) and GIBSON, J. (Ret.), Specially Assigned.
In this declaratory judgment action, we are again called upon to consider the constitutional implications of the Vermont statutes authorizing school districts to provide high school education to their students by paying tuition for nonpublic schools selected by their parents. See 16 V.S.A. §§ 822 and 824. In Campbell v. Manchester Board of School Directors, 161 Vt. 441, 641 A.2d 352 (1994), we concluded that the Establishment Clause of the United States Constitution was not an impediment to the reimbursement at public expense of tuition paid to a sectarian school in the circumstances of the case then presented. See id. at 447-48, 456, 641 A.2d at 356-57, 361 (). Today we confront a question explicitly reserved in Campbell, see id. at 447-48 n. 5, 641 A.2d at 356 n. 5: whether the tuition reimbursement scheme transgresses the Compelled Support Clause of the Vermont Constitution, Vt. Const. ch. I., art. 3, which speaks not to establishment of religion but to state support of religious worship. The superior court ruled in favor of the Department of Education and the intervenors aligned with the department, basing its analysis on the federal Establishment Clause. We focus on the Vermont Constitution and conclude that a school district violates Chapter I, Article 3 when it reimburses tuition for a sectarian school under § 822 in the absence of adequate safeguards against the use of such funds for religious worship. Because of the absence of such safeguards in this case, we affirm the judgment of the superior court.
The case was submitted to the superior court on stipulated facts, which we summarize in relevant part. Plaintiff Chittenden Town School District has ninety-five students in grades nine through twelve. It does not maintain a high school for the education of these secondary students. Instead, it pays tuition to public high schools or approved independent schools for this purpose, as explicitly authorized by 16 V.S.A. § 822. Pursuant to §§ 822(a)(1) and 824(b), parents of the students may select an approved school to which to send their children.
Until the 1996-97 school year, the Chittenden School Board authorized tuition payments only for public high schools or approved secondary schools that it found to be nonsectarian. In the 1995-96 school year, it paid tuition for seventy-five secondary school students. Of these, seventy-two attended one of the five public high schools operating in Rutland County, and three attended approved private secondary schools.
In December of 1995, the Chittenden School Board adopted a new secondary-education tuition-reimbursement policy that would allow tuition to be paid to sectarian schools. One approved independent sectarian secondary school operates in Rutland County. That school is Mount Saint Joseph Academy (MSJ), a parochial high school located in the City of Rutland. MSJ is owned and operated by the Sisters of Saint Joseph, under the authority of the Roman Catholic Diocese of Burlington. MSJ is an institution in which the secular and sectarian aspects of its educational program are intertwined. Its statement of philosophy reveals that its academic program incorporates religious and moral education through a broad range of curricular and co-curricular activities and that "[w]e believe that learning occurs in an atmosphere where faith and community are emphasized and overtly practiced...."
Consistent with its educational philosophy, MSJ requires instruction in theology, constituting four of twenty-three credits required for graduation. The four theology courses are entitled "Salvation History," "Sacraments," "Ethics" and "Commitment." The description of the theology curriculum at MSJ states:
During a four year period, the development of spirituality is found through liturgy, prayer, retreat and experiential learning activities. . . . Through the historical and biblical study of our faith roots, presentations, and discussions on the Gospels and lives of Christian leaders, students build a foundation for the development of their individual spiritual lives.
Among the expected outcomes of the theology education and the religious life activities of the school are that the students will "witness a sense of Catholic identity" and will "continue to proclaim the Gospel of Jesus and work towards fulfilling the kingdom through service/ministry/action."
The MSJ school day begins with a prayer, to which all students are required to give quiet attention. Once a month, the entire school attends a celebration of the Roman Catholic mass led by a priest. Non-Catholics must attend, but are not required to participate in the sacrament. All students must attend annual spiritual retreats, which include prayers and a mass. All students must attend a twice-annual celebration of the sacrament of reconciliation; participation in the sacrament is not required.
MSJ faculty are required to adhere to Catholic doctrine in their teachings and must demonstrate and exemplify the values of the Catholic faith by striving to live and teach the Gospel messages of Jesus. The principal of MSJ is a Roman Catholic nun. Of the twenty-seven teachers, four are nuns or priests.
Although we have been required by the issue before us to examine the sectarian aspects of education at MSJ, we emphasize that the record indicates that MSJ is a very good high school. Ninety-one percent of MSJ's class of 1996 went on to college. In recent years, the percentage has been 83% to 93%. Of the 206 students enrolled in MSJ for the 1996-97 school year, 164 were Roman Catholics and the remainder were of different faiths.
In May 1996, the Chittenden School Board specifically approved payment of tuition to MSJ. Fifteen Chittenden students were enrolled in MSJ for the 1996-97 school year.
The Chittenden Town School District funds secondary education through a combination of revenues raised by the local property tax and aid to education received from the State of Vermont. For the 1996-97 school year, it intended to use $39,000 in public funds to pay tuition at MSJ. MSJ has a three-tiered tuition policy, charging $3,000 annually to non-Catholics; $2,775 to Catholics who reside in the Diocese, but not in the City of Rutland; and $2,525 to Catholics who reside in the City of Rutland. MSJ projected its per-pupil cost of education at $5,021 for 1996-97. The Diocese and local Rutland parishes would make up the bulk of the difference.
When the Chittenden School Board voted to allow tuition reimbursement to MSJ, the Commissioner of Education terminated state aid to education to the district. The Chittenden Town School District then brought this action against the Commissioner and the Vermont Department of Education, asserting, among other claims,1 that tuition reimbursement to MSJ was constitutional and seeking an order to restore state-aid funding. Defendants counterclaimed that the Chittenden decision to make tuition payments to MSJ violated the Establishment Clause of the First Amendment to the United States Constitution and Chapter I, Article 3 of the Vermont Constitution. They also sought an injunction.
The superior court authorized two groups of intervenors. One group, aligned with plaintiff, consists of parents who are sending children to MSJ for secondary education and seek payment of the MSJ tuition by the Chittenden Town School District. The other group, aligned with defendants, consists of residents of the Town of Chittenden who oppose the use of their state and local tax payments to fund sectarian education.2
On October 17, 1996, the superior court entered a temporary order based on the stipulation of the parties. The temporary order prohibited the Chittenden Town School District from making any tuition payments to MSJ and required the Department of Education to continue to make state-aid-to-education payments to the district. On June 27, 1997, the superior court issued its opinion and order, concluding that "tuition payments from a school district to pervasively sectarian high schools, or the parents of the children who attend, would have the effect of a direct subsidy to religious schools in violation of the United States and Vermont Constitutions." The court granted defendants' motion for summary judgment and continued the temporary order pending appeal. It held, however, that if this Court reversed its decision, it would order the State to reimburse the Chittenden parents for tuition already paid to MSJ.
Plaintiffs have appealed from the court's decision, contending that (1) tuition payment to...
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