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Published in Print: January 12, 2000, as Supreme Court Declines To Hear Vt. 'Tuitioning' Case

Supreme Court Declines To Hear Vt. 'Tuitioning' Case

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The U.S. Supreme Court has passed up yet another opportunity to consider the constitutionality of publicly financed vouchers for religious schools.

The court declined last month to hear the appeal of a group of Vermont parents who sought to require the state to include religious schools in its small-scale tuition-payment program for towns without their own high schools.

In separate action before its holiday recess, the court also declined to disturb an Ohio Supreme Court ruling that public high school principals are not public figures for the purposes of libel law. The state high court ruling makes it easier for a high school principal to prevail as the plaintiff in a libel suit.

The Vermont case concerns "tuitioning," the practice of providing vouchers for students in towns without their own high schools. For much of the 130 years the practice has been in effect, tuitioning aid could be used at both religious and nonreligious private high schools. But since the early 1960s, the state has refused to allow tuition to be paid to religious schools because it believes the practice would violate the U.S. Constitution's prohibition against a government establishment of religion.

The current case began in 1996 when the town of Chittenden, which does not have its own public high school, proposed paying the tuition of students from the community who attend a Roman Catholic high school. The state objected and threatened to withhold all education aid to the town.

While the state courts considered the question, the Chittenden school board changed hands and dropped its support for including religious schools in the tuitioning program. But parents of students at the Catholic school pressed on with the case.

Last June, the Vermont Supreme Court held that providing state tuition aid for children at religious schools would violate a provision of the state constitution barring compelled support for religion. It also held that the exclusion of religious schools did not violate the Catholic school parents' right to free exercise of religion.

The parents' appeal to the U.S. Supreme Court in Andrews v. Vermont Department of Education (Case No. 99-628) argued that the exclusion of religious schools from the tuitioning program was a form of religious discrimination.

In its response, the Vermont education department argued that because the parents did not claim that sending their children to Catholic school was mandated by their faith, the state's exclusion of religious schools did not burden a central religious belief or practice. The state also argued that "a direct subsidy" to religious schools in the form of tuition would violate the First Amendment's establishment clause.

The justices on Dec. 13 declined without comment to hear the parents' appeal.

The court has declined three other recent opportunities to consider school choice programs that include religious schools. Those are the Milwaukee voucher program and an Arizona private school tax credit, both of which were upheld by their respective state supreme courts, and a Maine case involving a tuitioning program that, like Vermont's, excludes religious schools.

Several legal observers have suggested that the Supreme Court will take up the issue of religious school vouchers at some point. Most now look to the Cleveland voucher program as the most likely possibility. A federal district judge ruled that program unconstitutional last month, but students at religious schools will continue to receive vouchers while the case is appealed.

The Supreme Court expressed interest in the Cleveland case this past fall by issuing an order, by a 5-4 vote, that lifted a temporary injunction granted by the district court judge that had blocked new students from entering the program.

Principal's Libel Suit

Separately last month, the justices declined without comment to review the ruling of the Ohio Supreme Court that a public high school principal can never be a public official or public figure under defamation law.

Under U.S. Supreme Court rulings beginning with New York Times v. Sullivan in 1964, a public official or public figure must meet a higher burden of proof to win a libel suit. Such individuals must show that a defamatory statement was not just false but was made with "actual malice," or with the knowledge that it was false or in reckless disregard for the truth.

The case of Slick v. McIntosh (No. 99-532) involves a defamation suit filed by John R. McIntosh, a former principal of East Canton High School in the Osnaburg school district, against several teachers and school board members who spoke out against his retention following a disciplinary controversy at the school.

The state supreme court ruled 5-2 that Mr. McIntosh was not a public official or public figure for libel-law purposes.

"Principals, in general, are removed from the general conduct of government, and are not policymakers at the level intended by the New York Times designation of public official," the majority said, quoting a Georgia court.

A dissenting justice on the state supreme court wrote that "the majority has diminished the likelihood of open, free, and vigorous public debate concerning the operation of public schools."

In their appeal to the U.S. Supreme Court, the libel defendants argued that courts in various states have reached different conclusions about whether a principal is a public official for defamation purposes.

"Contrary to the Ohio State Supreme Court's decision ... a principal has, and generally is perceived by the public to have, substantial responsibility for and control over the conduct of governmental affairs," the defendants' brief said.

Vol. 19, Issue 17, Page 24

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