by Christina Rainville , Esq .
THE CHILDREN ’ S CORNER
Does Vermont Law Allow Vermont ’ s Education System to Discriminate Against Children with Disabilities Who Want to Attend Publicly-Funded Independent Schools ?
Considerable controversy has been generated by the Vermont Board of Education ’ s proposed rule that would alter Vermont ’ s system of education by requiring the State ’ s taxpayer-funded independent schools to accept students with disabilities . However , little attention has been paid to whether Vermont law compels this result . This article concludes that , as a matter of Vermont law , students with disabilities have a legal right to be admitted to and be accommodated in taxpayer-funded independent schools .
Under Vermont ’ s system of education , towns that do not have public schools at the elementary , middle and / or high school level , provide “ choice ” by which the town pays a per-pupil stipend for students to select which school they will attend . In practice , this often results in students attending a nearby independent school , which in effect serves as the town ’ s community school , which is paid from taxpayer-provided funds for each student who attends . 1 Those public payments , based on contracts between the local school board and the independent school , make up the vast majority of many independent schools ’ annual funding . Nonetheless , independent schools are free to not accept , or not accommodate , students with disabilities at the school ’ s absolute discretion .
The result is that students with disabilities who live in towns with a public school at the relevant academic level can be assured of attending school in their communities and receiving required accommodations and / or services . By contrast , students with disabilities who live in towns whose community schools are taxpayer-funded independent schools cannot be so assured .
This differing treatment , created by Vermont ’ s education system , has profound negative effects on students with disabilities . Children with disabilities whose communities have no public school , and who are denied access to their community independent school , need to travel , by necessity , to schools at significant distance outside their communities , where they have no friends and where it is a hardship for their families to support them . The harm of being forced to attend a geographically-distant school is significant . Children often cannot be involved in sports or after-school activities because of transportation issues , and it is difficult for the children to develop friendships because few parents are able ( or can afford ) the hours of driving that are required to bring a child to a friend ’ s house 45 minutes or further away .
But for many children , the worst part is the stigma of knowing that someone in a position of power has , in effect , decided that the child is not “ good enough ” to attend the taxpayer-funded independent community school , and that sense of shame is re-enforced every time the child drives by the community school , sees a school bus the child is not permitted to be on , or watches a soccer game , from a distance , with children wearing uniforms the child will never be allowed to wear . In addition , some students with disabilities who want to attend their community independent school may make a difficult decision and chose to forego required accommodations and / or services in order to be admitted or to be allowed to remain at the school if they require more accommodations or services than the school is willing to provide . Of course , not receiving legally-mandated support will significantly prejudice the educational opportunities for these students , a prejudice not suffered by children who can attend public schools in their communities without giving up their rights .
It does not appear that an education system that denies students with disabilities the opportunity to attend their taxpayer-funded community independent school can withstand scrutiny under Vermont law . In its polestar decision in Brigham v . State , 2 the Vermont Supreme Court , citing Brown v . Board of Education , 3 held that a “ system [ that ] has fallen short on providing every school-age child in Vermont an equal education opportunity ” violates the Education and Common Benefits Clauses of the Vermont Constitution . 4
In rejecting a system that provided disparate financing for schools in various towns , the Court made clear that the State may not “ abdicate the basic responsibility for education by passing it on to local governments .” 5 Likewise here , it would not appear that the State ’ s obligation to provide equal educational opportunities for students with disabilities is obviated by allowing towns to offer the “ choice ” of distant public schools when the community independent school is not an option , or to create a “ choice ” where students with disabilities may feel compelled to forego required accommodations and / or services in order to attend their community independent school . In language seemingly relevant to this issue , the Court held : “ The distribution of a resource as precious as educational opportunity may not have as its determining force the mere fortuity of a child ’ s residence . It takes no particular constitutional expertise to recognize the capriciousness of such a system .” 6 ( emphasis in original ).
Here , disparate educational opportunity due to the “ mere fortuity of a child ’ s residence ” occurs not because of differences
50 THE VERMONT BAR JOURNAL • SUMMER 2017 www . vtbar . org