Vermont is no stranger to the courts when it comes to conditions on "town tuitioning" programs, common across sparsely populated parts of New England, which offer public money to families without a local public school to use on education of their choice.

The state's latest response to years of court rulings against discrimination in the programs – notably the Supreme Court's 2022 precedent against Maine for excluding religious schools that make claims to absolute truth – got it hauled back into court last week.

Two mothers sued the Green Mountain State and Vermont Secretary of Education Zoie Saunders to block enforcement of a law signed last summer by socially liberal five-term Gov. Phil Scott, a Republican who voted for Democrats Joe Biden and Kamala Harris in the last two presidential elections and is inordinately popular in the deep-blue state.

Act 73 applies arbitrary conditions to the state's 156-year-old town tuitioning program in violation of the state constitution's common benefits clause, which guarantees "everyone have an equal share in the fruits of the common enterprise," the suit says, quoting the Vermont Supreme Court's 1998 precedent that shepherded in civil unions for gay couples.

The law "automatically" excludes otherwise eligible students who "desire to attend a school that primarily accepts students who do not request access" to town tuitioning and strips away their parents' right to access to tuition assistance "while similarly situated parents retain the benefits," according to the suit.

"Our family moved to our small town in Vermont specifically for school choice" but Act 73 was signed "mere months before high school visitations occur, applications are finalized, and choices are made," co-plaintiff Kollene Caspers said. "It’s not fair."

Caspers and co-plaintiff Michele Orosz, both of whose younger children lost eligibility for schools their older siblings attended via town tuitioning, are represented by the Liberty Justice Center, best known recently for challenging President Trump's tariff authority, and local counsel Deborah Bucknam.

Vermont "will be paying town tuitioning regardless" because Georgia, the town in which both families live, has no public high school, Orosz said. "There is no rhyme or reason to which schools and which kids get to stay eligible."

A spokesperson for LJC told Just the News the libertarian public interest law firm chose a state instead of federal lawsuit because it sees the common benefits clause as a stronger claim against a state law. Similar federal litigation against Maine and Vermont argued the strictest form of judicial review applied to their alleged religion-based discrimination.

Reportedly a response to Vermont's concurrent high per-pupil spending, falling enrollment and exploding property taxes, Act 73 stripped town-tuitioning eligibility from all 12 participating religious schools, which had been drawing increasing funding for the prior four years, though lawmakers told VTDigger they weren't intentionally targeted. 

Only students already attending now-ineligible schools can keep getting public money through graduation. Both families want to send the younger children to Rice Memorial High School, where their older siblings excelled under its "enriched education for gifted students," but the lawsuit omits that it's a Catholic school.

Injunction necessary due to "impossibility of an acceptable remedy"

New England states have pivoted repeatedly around actual or expected court rulings against their town-tuitioning conditions, including Vermont.

The Alliance Defending Freedom secured tuition-reimbursement settlements on behalf of Vermont families excluded from town tuitioning after SCOTUS invalidated Maine's limitation of eligibility to "nonsectarian" schools, which the justices interpreted to mean secular and "watered down" religious schools.

The 2nd U.S. Circuit Court of Appeals had already ordered Vermont to let the families receive reimbursement while the case proceeded, and a state judge questioned the eligibility criteria a month before SCOTUS considered Maine's policy. 

Maine adopted "poison pill" legislation ahead of the SCOTUS ruling, preventing religious schools in town tuitioning from preferring their own faith while removing an exemption that lets them handle sexual orientation and gender identity issues in line with their faith.

Caspers and Orosz filed a motion for preliminary injunction to stop two Act 73 provisions from taking effect this fall: flat prohibitions on town-tuitioning eligibility for any school created after July 1, 2025, and any school with less than a quarter of students "attending on a district-funded tuition" in the 2023-2024 school year.

They said the state supreme court favors preliminary injunctions for minors who will become adults mid-litigation because of the "impossibility of an acceptable remedy," and the 2nd Circuit already found "irreparable harm" – a factor in approving injunctions – in 2021 when a Rice upperclassmen was denied eligibility for a program that pays for college classes.

If a school like Rice "suffers irreparable harm from a diminished ability to attract talented students, then Plaintiffs suffer even greater irreparable harm because of their own diminished educational options," the motion says. Even if the Caspers "manage to scrounge up the funds to pay" for their youngest this fall, Rice will struggle to attract the best students.

The common benefits and education clauses in the state constitution, taken together, mean that providing educational services based on the "mere fortuity of a child’s residence" is unconstitutional, denying children "substantial equality of educational opportunity," the motion says, citing precedents from 1997 and 2023.

Contrary to the General Assembly's stated purpose, "Act 73 undermines stability and predictability with haphazard eligibility rules applied arbitrarily, subjectively, and on a regional and age basis," creating "even greater disparities in student opportunity from community to community … and sometimes even within the same family," it says.

Without an injunction, parents in the nearly 40% of towns that rely on tuition assistance "are in the same horrible situation as Kollene: trying to help an eighth-grader prepare for high school without having any idea of what that high school will be." 

Other students are like the plaintiffs' older children, the motion says: "Having to suddenly reconsider their post-graduation plans because their family needs to redirect funds to send their younger siblings to their desired school."

The harm to the state from not being able to enforce Act 73, "a radical, abrupt departure" from the system in place since 1869, during the litigation is "minimal," according to the motion. Even if Vermont prevails, keeping the status quo "that has existed since before houses had running water and electricity will have little to no effect on the State."

The motion concludes by asking the court to impose only a "nominal security fee" on the plaintiffs, a routine requirement when seeking an injunction, or waive it entirely in light of the drastic financial disparity between Vermont and the plaintiffs.

The state won't suffer any financial harm from Act 73's suspension during litigation, since both the plaintiffs' preferred school of Rice and the out-of-town public schools their kids would otherwise attend "typically charge the average statewide announced tuition" set by the state board of education, the motion says.

"Kollene and Michele are working parents whose incomes are already stretched by paying for ordinary household expenses," it says. "They cannot reasonably be expected to pay upfront their own children’s tuition for the next few years."