www.vtbar.org
public schools in their obligations to stu-
dents with disabilities as part of the opera-
tion of the state’s system of education.
Although independent schools have of-
fered reasons why they should not be re-
quired to accept and provide required ac-
commodations and/or services to students
with disabilities, none seemingly will be suf-
ficient to change this analysis. The Court
in Brigham held that disparate treatment
under the Education and Common Ben-
efits Clauses can only be justified where
“any discrimination occasioned by the law
serves a compelling government interest,
and is narrowly tailored to serve that ob-
jective.” 13
In applying this standard, it should be
noted that the Vermont Independent
Schools Association has maintained that it
may be difficult for some schools to pro-
vide required accommodations and/or ser-
vices to students with disabilities. But it is
difficult to see how it will be more difficult
than it is for public schools. Likewise, the
claim that smaller independent schools will
have particular problems in providing re-
quired accommodations and/or services
ignores the fact that there are many small
public schools in Vermont that do so.
Independent schools also have argued
in a letter from the Vermont Council of In-
dependent Schools to the Chairman of
the State Board of Education that, if in-
dependent schools are required to accept
students with disabilities, “independent
school education will be accessible only to
wealthy families that can afford to pay tu-
ition.” The basis for this contention is not
explained. Because many of the indepen-
dent schools are now almost entirely sup-
ported by taxpayer funding, it is difficult to
see how this claim even makes sense.
Finally, independent schools maintain
that students with disabilities can go else-
where, i.e. to distant public schools. As
discussed above, forcing these students
out of their home communities alone
works considerable prejudice. Moreover,
the arguments that students with disabili-
ties can attend a different school unfortu-
nately brings to mind the discredited “sep-
arate but equal” rationale of Plessy v. Fer-
guson, 14 not the controlling rationale of
Brown v. Board of Education. As the Court
held in Brigham:
We find no authority for the proposition
that discrimination in the distribution of a
constitutionally mandated right such as ed-
ucation may be excused because a “mini-
mal” level of opportunity is provided to all.
As Justice Marshall observed, “the Equal
Protection Clause is not addressed to . . .
minimal sufficiency but rather to the unjus-
tifiable inequities of state action.” 15 (cita-
tions omitted).
In the end, none of the independent
schools’ arguments would appear to come
THE VERMONT BAR JOURNAL • SUMMER 2017
close to fulfilling the compelling state inter-
est test of Brigham. In Brigham, the Court
rejected the State’s reliance on “the laud-
able goal of local control” as sufficient to
allow disparate educational opportunities
based on where children live. 16 Here, it is
difficult to perceive even a “laudable goal”
that supports the discriminatory system at
issue. Therefore, it would strongly appear
that Vermont law requires taxpayer-funded
independent schools to accept students
with disabilities and provide required ac-
commodations and/or services.
____________________
Christina Rainville, Senior Counsel at El-
lis, Boxer & Blake in the Firm’s litigation
practice, specializes in complex litigation,
including discrimination and disability mat-
ters and criminal law.
____________________
in funding from town to town, but due to
the utilization of taxpayer-funded indepen-
dent schools as part