Campbell v. Manchester Board of School Directors

CAMPBELL_V_MANCHESTER_BD_SCHL_DIRECTORS.92-194; 161 Vt. 441; 641 A.2d 352

[Opinion Filed 28-Jan-1994]

[Motion for Reargument Denied 17-Mar-1994]

 NOTICE:  This opinion is subject to motions for reargument under V.R.A.P. 40
 as well as formal revision before publication in the Vermont Reports.
 Readers are requested to notify the Reporter of Decisions, Vermont Supreme
 Court, 109 State Street, Montpelier, Vermont 05609-0801 of any errors in
 order that corrections may be made before this opinion goes to press.


                                 No. 92-194


 Orland Campbell                              Supreme Court

                                              On Appeal from
      v.                                      Washington Superior Court

 Manchester Board of                          February Term, 1993
 School Directors


 David A. Jenkins, J.

 Charles S. Martin and Edward Wayland, Law Clerk (On the Brief), of Martin
   & Paolini, P.C., Barre, for plaintiff-appellant

 Peter S. Cullen and John Davis Buckley of Theriault & Joslin, P.C.,
   Montpelier, for defendants-appellees



 PRESENT:  Allen, C.J., Gibson, Dooley, Morse and Johnson, JJ.


      DOOLEY, J.   Plaintiff Orland Campbell appeals the decision of the
 Washington Superior Court denying his claim to the right of reimbursement
 under 16 V.S.A. { 822 for tuition expenses incurred in educating his son at
 St. Andrews Academy in Delaware.  The superior court affirmed the decisions
 of the Vermont Board of Education (State Board) and the defendant, the
 Manchester Board of School Directors, that reimbursement is prohibited by
 the Establishment Clause of the First Amendment to the United States
 Constitution because of St. Andrews' sectarian character.  We reverse.
      This is the second time this case has been before this Court.
 Plaintiff originally attempted to appeal directly from the State Board to

 

 this Court.  Defendant moved to dismiss arguing that no review of the State
 Board decision was available.  We agreed that no review was available by way
 of appeal, but concluded that plaintiff could obtain judicial review by
 certiorari in the superior court.  Campbell v. Manchester Bd. of School
 Directors, 152 Vt. 643, 644, 565 A.2d 1318, 1318 (1989).  This appeal is
 from the adverse decision of the superior court.
      The Town of Manchester does not maintain a public high school.  As a
 result, it is required to pay the tuition costs of local students to attend
 "an approved public or independent high school, to be selected by the
 parents or guardians of the pupil, within or without the state."  16 V.S.A.
 { 822(a)(1).  The amount of tuition assistance is not to exceed "the average
 announced tuition of Vermont union high schools for the year of attendance
 . . . or any higher amount approved by the electorate."  Id. { 824(c).
      In 1985, apparently at the instigation of plaintiff, St. Andrews
 Academy contacted the Vermont Department of Education for approval to
 educate Vermont students under the compulsory education statute, 16 V.S.A. {
 1121, and for approval to receive tuition payments from towns without a
 public high school.  The Department approved the former request but denied
 the latter "[b]ecause of constitutional barriers."  Because of this
 decision, St. Andrews appears on a list of approved private schools,
 published in November 1987 by the Department of Education, with a notation
 that it is ineligible to receive school district tuition payments.
      Plaintiff enrolled his son at St. Andrews Academy and applied for
 tuition reimbursement from defendant.  Defendant sent a "Tuition Eligibility
 Questionnaire" to St. Andrews, and, on the basis of the response, denied
 reimbursement "based on its religious affiliation."  Pursuant to 16 V.S.A. {

 

 828, plaintiff appealed these decisions to the State Board which, after a
 hearing before a hearing officer, denied the appeal.
      Although there are no obvious factual disputes, there has been only
 limited fact-finding in this case.  Relying on the St. Andrews catalogue and
 questionnaire responses, the State Board found:
              In this case the materials presented suggest that the
           St. Andrews academic program is excellent.  While it
           requires bible study, one cannot judge from the
           catalogue alone the true nature and content of these
           courses.  However, the catalogue cover features a
           church.  The Episcopal insignia is incorporated in the
           school crest, and of greater relevance here, St. Andrews
           holds itself out as a sectarian institution.  It
           requires participation in Episcopalian services of its
           students (allowing only Catholic students to substitute
           attendance at mass for the on campus Episcopal service).
           The religious aspects of its program "give focus and
           meaning to our community and weave together the many
           unique strands within it."  St. Andrews Catalogue p. 21.
         The catalogue also states that the purpose of the school is to provide
    education "of a definitely Christian character."  The Headmaster's message
    at the front of the catalogue states "St. Andrew's is an Episcopal Church
    School" and amplifies that "[w]hat it does mean is that the School takes the
    Christian faith seriously."
         Based on the facts and the standards applied by the Department of
    Education (FN1) and defendant, the State Board found "St. Andrews to be a
    sectarian school" and affirmed on that basis.  On certiorari, the superior
    court affirmed, although it was concerned that defendant had failed to hold
    a hearing to make a factual record.  The court held that on the record
    presented tuition reimbursement would be unconstitutional.

 

         Before reaching the merits of this case, we must consider one
    procedural issue raised by defendant.  It argues that the relevant statute,
    16 V.S.A. { 828, vests the approval of private schools for tuition
    reimbursement in the State Board so that no relief from an adverse
    determination is possible against an individual school board directly.
    Defendant relies on { 828, which states:
                 A school district shall not pay the tuition of a
              pupil except to a public or independent school approved
              by the state board, nor shall payment of tuition on
              behalf of a person be denied on account of age.  A
              person who is aggrieved by a decision of a school board
              relating to eligibility for tuition payments, the amount
              of tuition payable, or the school he may attend, may
              appeal to the state board and its decision shall be
              final.

 16 V.S.A. { 828 (1989) (current, amended version at 16 V.S.A. { 828 (Supp.
 1993)).
      We note that this argument was never addressed by the superior court,
 and further is inconsistent with defendant's actions prior to the superior
 court proceeding.  See In re Twenty-Four Vermont Utilities, ___ Vt. ___,
 ___, 618 A.2d 1295, 1303 (1992) (failure to raise issue in administrative
 proceeding precludes judicial review).  Defendant made the decision to deny
 tuition payments based on its own analysis of St. Andrews Academy, and it
 defended that decision before the State Board.  There is nothing in the
 record that indicates that the State Board maintains a list of schools
 approved for tuition reimbursement; indeed, its decision-making process is
 inconsistent with the presence of such a list.(FN2) See id. at ___, 618 A.2d  at

 

 1308 (absent compelling indication of error, statutory constructions by
 agency responsible for its execution is followed).  The Department of
 Education maintains a list but it is specifically designated as "not binding
 on a local school board in the exercise of its authority to determine
 eligibility for tuition purposes."
      Irrespective of whether defendant is correct that the tuition approval
 decision is vested in the State Board, the second sentence clearly sets
 forth the appeal route, which plaintiff followed.  If tuition is to be paid,
 defendant will pay it.  Thus, the court had before it the parties with the
 direct stake in the outcome.  Defendant has suggested no alternative route
 by which plaintiff could have the serious constitutional issues in this case
 decided.  We conclude that { 828, and the certiorari jurisdiction of the
 superior court, provide jurisdiction for the superior court's review of the
 merits of the decision.
      Because it is related to the substance of this case, we also address
 the statutory construction issue raised by defendant.  Defendant reads { 828
 to vest in the State Board, through its power to approve a school, the
 entire responsibility to determine which schools can be reimbursed
 consistent with the Establishment Clause.  We do not believe that is a
 proper reading of the section.  An independent school is "a school other
 than a public school, which provides a program of elementary or secondary
 education, or both."  16 V.S.A. { 11(a)(8).  The term "approved independent
 school" is defined in 16 V.S.A. { 11(a)(20) as an independent school, which
 is approved under 16 V.S.A. { 166.  That section, in turn, makes clear that

 

 the approval contemplated relates to approval for attendance purposes (FN3) --
 that is, the school meets curricular and other regulatory standards such
 that children attending the school meet the statutory school attendance
 requirement.  See 16 V.S.A. {{ 166(b)(5) (loss of approval means students
 are truant unless they enroll in another qualifying school), 1121
 (attendance at school of children of school age required); see also State v.
 DeLaBruere, 154 Vt. 237, 241-42, 577 A.2d 254, 257 (1990) (discussing {
 1121).  Reading the sections together, as we must, we believe that a "public
 school approved by the state board," as the phrase appears in { 828, refers
 to approval under { 166(b).
      There is nothing in { 166(b) to suggest that the Legislature intended
 the State Board to review whether a particular school is sectarian.  No
 procedures are set forth in the statutes for such a determination.  Although
 the State Board is given rulemaking power with respect to the approval of
 independent schools, these rules are to relate to whether a school provides
 a "minimum course of study," "has the resources required to meet its stated
 objectives," has qualified faculty, and has physical facilities and special
 services that are in accord with state and federal law.  16 V.S.A. { 166(b).
 In fact, the State Board has issued no rules that condition approval on a

 

 school being non-sectarian.  See Vermont Bd. of Educ., Manual of Rules &
 Practices {{ 2220-2228 (1992) (independent school approval regulations),
 reprinted in 3 Code of Vt. Rules 22000004 (1992).  The State Board also has
 approved a number of sectarian independent schools pursuant to 16 V.S.A. {
 166(b).  See Vermont Dep't of Educ., Directory of Approved And Recognized
 Independent Schools in Vermont (1993).(FN4)  Moreover, the Legislature has
 specifically set out the powers of the State Board, but has not given it the
 power to determine whether payment of tuition would offend the Establishment
 Clause of the First Amendment.  See 16 V.S.A. { 164.
      In 1961, in Swart v. South Burlington Town School District, 122 Vt.
 177, 167 A.2d 514, cert. denied 366 U.S. 295 (1961), this Court struck down
 the practice of public school districts paying tuition to religious schools
 as a violation of the Establishment Clause.  Thus, we held that the school
 district "while acting within the literal provisions of the statute, ha[d]
 exceeded the limits of the United States Constitution."  Id. at 188, 167 A.2d  at 521.  The Legislature took no action to implement that decision,
 leaving the school districts in the same position today as they were in
 1961.  Although the relevant statutes allow school districts to pay tuition
 on behalf of a resident who is a student in any approved private school, the
 districts must determine whether such a payment violates the Establishment

 

 Clause.  This responsibility rests upon them, and not the State Board,
 except as a matter of appellate review.
      Since we have rejected defendant's procedural argument, we must address
 plaintiff's substantive claim.  For purposes of analysis, we divide the
 substantive question into two parts:  (1) whether in these circumstances
 tuition reimbursement for a religious educational institution offends the
 First Amendment of the United States Constitution; and (2) whether St.
 Andrews Academy is such an institution.  Defendant claims that tuition
 reimbursement for tuition paid to a sectarian school offends the
 Establishment Clause of the First Amendment, which states that "Congress
 shall make no law respecting an establishment of religion."(FN5)  This
 prohibition of the First Amendment applies to the states through the
 Fourteenth Amendment.  See Cantwell v. Connecticut, 310 U.S. 296, 303
 (1940).
      As indicated above, we decided this precise question in Swart, holding
 that tuition reimbursement for Roman Catholic high schools was
 constitutionally impermissible.  122 Vt. at 187-88, 167 A.2d  at 520-21.

 

 This holding was based on the First Amendment jurisprudence as it then
 stood.  As the briefing reflects, that jurisprudence has evolved greatly
 since 1961 and in directions unpredictable at that time.  Thus, we must
 examine the difficult constitutional issues anew in light of more recent
 teachings.
      In 1971, in Lemon v. Kurtzman, 403 U.S. 602 (1971), the Supreme Court
 of the United States developed a three-part Establishment Clause test which
 has endured, with some modification and internal disagreement, ever since.(FN6)
 To prevail under the Lemon test, (1) a challenged statute must "have a
 secular legislative purpose," (2) "its principal or primary effect must be
 one that neither advances nor inhibits religion," and (3) it must not
 "foster 'an excessive government entanglement with religion.'"  Id. at 612-
 13 (quoting Walz v. Tax Comm'n, 397 U.S. 664, 674 (1970)).
      Two cases since Lemon demonstrate the main considerations in applying
 the Lemon test to the tuition reimbursement scheme before us.  For the
 school district, the most important case is Committee for Public Education &
 Religious Liberty v. Nyquist, 413 U.S. 756 (1973), decided shortly after
 Lemon.  Nyquist involved three New York programs created to aid private
 schools:  a grant program providing aid for maintenance and repair of school

 

 facilities to private schools serving a high concentration of low-income
 children; a tuition reimbursement program providing limited reimbursement to
 low-income parents who send their children to private schools; and a tuition
 tax credit for parents who do not qualify for the tuition reimbursement
 program because their income is too high.  At the time the law was passed,
 twenty percent of the state's children were being educated in private
 schools and eighty-five percent of the private schools were church-
 affiliated.
      The Court accepted that the programs had secular purposes in protecting
 the health and safety of private school students, promoting pluralism and
 diversity and protecting overburdened public schools from having to educate
 those then in private schools.  It found, however, that the tuition
 reimbursement program failed the "effect" test because most of the money
 went to tuition for sectarian institutions.  The Court noted that the state
 could not make direct grants to religious institutions because there was no
 control to ensure that the aid was "used exclusively for secular, neutral,
 and nonideological purposes."  Id. at 780.
      The Court also concluded that the result was the same when the funds
 were channeled through the parents for two reasons.  First, there were no
 restrictions on how the funds were used by the institution:
            The tuition grants here are subject to no [use] . . .
            restrictions. . . .  Indeed, it is precisely the
            function of New York's law to provide assistance to
            private schools, the great majority of which are
            sectarian.  By reimbursing parents for a portion of
            their tuition bill, the State seeks to relieve their
            financial burdens sufficiently to assure that they
            continue to have the option to send their children to
            religious-oriented schools.  And while the other
            purposes for that aid -- to perpetuate a pluralistic
            educational environment and to protect the fiscal

 

            integrity of overburdened public schools -- are
            certainly unexceptionable, the effect of the aid is
            unmistakably to provide desired financial support for
            nonpublic, sectarian institutions.

 Id. at 783 (footnote omitted).  Second, the element of choice did not change
 the fundamental purpose and effect of the reimbursement program.  Thus,
 "[w]hether the grant is labeled a reimbursement, a reward, or a subsidy, its
 substantive impact is still the same."  Id. at 786.
      Relying on the same analysis, the Court also struck down the tuition
 tax credit scheme:  "The qualifying parent under either program receives the
 same form of encouragement and reward for sending his children to nonpublic
 schools."  Id. at 791.  Although it decided the case under the "effects"
 prong of the Lemon test, the Court raised concerns that the political
 divisiveness of state aid to sectarian education created a form of political
 entanglement, calling it a "warning signal" not to be ignored.  Id. at 796-
 98.
      In the case before us, plaintiff relies mainly upon Mueller v. Allen,
 463 U.S. 388 (1983), in which the Supreme Court upheld a Minnesota law that
 gave an income tax deduction for expenses incurred in providing tuition,
 textbooks and transportation for children in public or private schools.  In
 Mueller, the Court distinguished Nyquist and relied upon a number of factors
 in finding no impermissible effect:  (1) the tax deduction is one of many in
 the Minnesota tax code to equalize tax burdens of citizens; (2) the
 deduction is available for parents of all children in school, including
 those in public schools; and (3) the aid is channeled through parents so
 that the benefit is the result of private choice.  Id. at 396-99.  Although
 the third of these factors was also present in Nyquist, the Court put

 

 greater emphasis on it in Mueller:  "The historic purposes of the Clause
 simply do not encompass the sort of attenuated financial benefit, ultimately
 controlled by the private choices of individual parents, that eventually
 flows to parochial schools from the neutrally available tax benefit at issue
 in this case."  Id. at 400.  The Court refused to consider empirical
 evidence that most of the benefit went to the parents of children in
 parochial school.  Id. at 400-01.
      The Court also considered the "entanglement" part of the Lemon test
 because the deduction excluded expenditures on religious textbooks.  It held
 that such determinations did not foster an excessive entanglement.  Id. at
 403.
      The themes of Mueller are relied upon in Witters v. Washington
 Department of Services for the Blind, 474 U.S. 481, 489 (1986), in which the
 Court held that the Establishment Clause does not prevent the provision of
 vocational rehabilitation services to aid a blind student to pursue studies
 at a Christian college to become a pastor.  Noting that "[i]t is well
 settled that the Establishment Clause is not violated every time money
 previously in the possession of a State is conveyed to a religious
 institution," the Court emphasized that the aid is given to the student "who
 transmits it to the educational institution of his or her choice" and it is
 given on behalf of public and private schools.  Id. at 486, 487.  The Court
 also emphasized that there was no incentive to use the aid at a religious
 institution, and no significant part of the aid would end up flowing to
 religious education.  Id. at 488.  Because of these facts, the Court held
 that the program did not "confer any message of state endorsement of
 religion" and upheld aid to the student even though the religious

 

 institution could use the assistance provided through the student for any
 purpose.  Id. at 489.
      If Mueller and Witters are the controlling precedents, there may be no
 Establishment Clause barrier to reimbursing plaintiff for tuition paid to a
 private school.  If Nyquist is the controlling precedent, there may be a
 barrier.
      Because of the nature of this proceeding, we have only a very limited
 record on which to make our determination.  This is unfortunate because it
 is difficult to judge the effect of a particular course of action without a
 clear understanding of the choices available to parents and children, the
 usage of private schools, the usage of sectarian schools, the number of
 students who have a choice of school, and the like.  Our discomfort is
 heightened because the specific case before us may be atypical, involving an
 out-of-state preparatory school that draws students of different religions.
 We note, however, that Witters arose in a similar context and had a
 similarly sparse record.
      We emphasize six "facts" from the record, the statutory scheme and
 generally available information of which we take judicial notice.(FN7)  First,
 plaintiff has already paid the tuition in question and is looking for
 reimbursement; thus, no payment will go directly to a sectarian school.
 Defendant has made no objection to this procedure although the relevant
 statute appears to contemplate payment directly to the private high school
 selected by the parent of the pupil.  See 16 V.S.A. { 822(a)(1).

 

 Recognizing that direct payments to a sectarian institution may raise
 additional considerations, we do not address the validity of a direct
 payment to a sectarian institution.
      Second, defendant does not maintain a high school and pays tuition for
 all high school pupils, as required by statute.  This is not a case in which
 a school district both maintains an appropriate school and allows some
 students to go elsewhere by paying tuition for them.  See id.
      Third, there is no allegation that defendant's decision not to
 maintain a high school represents a desire to aid sectarian education.
 Although there are no facts in the record to determine the exact extent of
 the practice of paying tuition rather than maintaining a high school, the
 information available to us indicates that a majority of towns maintain a
 high school, participate in a union high school or designate a private high
 school as the public high school under 16 V.S.A. { 827(a).  See 1993-94
 Vermont Year Book 43-44, 46-47 (1993) (listing Vermont secondary schools and
 composition of union high school districts).(FN8)  From the state perspective,
 the main evidence that the tuition reimbursement system is not intended to
 aid religious education is its history.  If aiding religious education was
 the intent of the reimbursement system originally, that intent did not
 survive Swart in 1961.  Instead, the system has continued for the past

 

 thirty years with the only change being the resulting limitation on parental
 choice.
      Fourth, unlike Nyquist, there is no indication that the result of
 defendant's policy will be to send any substantial number of children to
 sectarian schools.  In the 1992-1993 school year, approximately 42,300
 students were enrolled in Vermont secondary schools.  Vermont Dep't of
 Educ., Elementary/Secondary Public School Enrollment, 1992-93 School Year
 (1993) (pages unnumbered).  Of that number, approximately 3000, or seven
 percent, are enrolled in private schools.  Id.  There is a private secondary
 school in Manchester, Burr & Burton Seminary, which despite its name is
 listed by the Vermont Department of Education as a non-sectarian school.
 There is no approved private sectarian secondary school in Bennington
 County.  See Vermont Dep't of Educ., Directory of Approved and Recognized
 Independent Schools in Vermont (Jan. 1993).  We have no indication, however,
 of the extent to which tuition might be paid for out-of-state schools.
      Fifth, the extent of state regulation, or other involvement with, St.
 Andrews Academy will not be affected by the outcome of this case.  The
 school is already an "approved" independent school.  See 16 V.S.A. { 166(b).
 Apparently, this designation was made because St. Andrews is "accredited or
 approved by the host state or by an accrediting agency recognized by the
 State Board."  Vermont Bd. of Educ., Manual of Rules & Practices { 2224.3
 (Jan. 1992) reprinted in 3 Code of Vt. Rules 22000004, at 3 (1992).
      Sixth, in this case, the subsidy scheme does not operate to promote
 sectarian education.  The school district of the student's residence must
 reimburse for the full tuition charged by a public school.  For a private
 school, reimbursement is only at the "average announced tuition of Vermont

 

 union high schools for the year of attendance" unless the school meets
 Vermont public school approval standards or the paying district votes a
 higher rate.  16 V.S.A. { 824(b)-(c).  There is no indication of a higher
 rate here, and St. Andrews Academy, because it is not a Vermont institution,
 cannot meet Vermont public approval standards.  See id. { 11(a)(8).
      Turning to the merits, we can dispose quickly of the first part of the
 Lemon test.  There is no question that the purpose of the statutory scheme
 is to provide educational opportunity for school-age children while
 offering educational choice.  As indicated above, there is no indication of
 a purpose to aid sectarian education.  There is clearly a valid secular
 purpose for the tuition reimbursement scheme.
      On the second part of the test, we find this case to be governed by
 Mueller and Witters and not by Nyquist.  Thus, we find that the primary
 effect of the tuition reimbursement scheme is not to advance religion.
      There are a number of critical distinctions between this case and
 Nyquist.  Here, tuition reimbursement covers all students whether or not
 they attend a public or private school, whereas in Nyquist it went only to
 private school students.  As Mueller states, "a program . . . that neutrally
 provides state assistance to a broad spectrum of citizens is not readily
 subject to challenge under the Establishment Clause."  463 U.S.  at 398-99.
      In Nyquist, the purpose of the law was to aid private schools, the
 majority of which were religious schools.  413 U.S.  at 783.  The Court
 assumed the purpose would be realized so that "the effect of the aid is
 unmistakably to provide desired financial support for nonpublic, sectarian
 institutions."  Id.  Here, there is no indication that aid to sectarian
 education is either a purpose or a main effect.  No doubt some tuition

 

 support will go to religious institutions because of our decision.  The
 state and the town are entirely neutral on the extent to which parents
 exercise that option in the context of reimbursement of tuition payments to
 parents.
      If anything, this case shows a preference for public education because,
 as discussed earlier, plaintiff faces unreimbursed costs in sending his son
 to an out-of-state independent school.  We note, however, that this may not
 be true for all private schools because the attainment of Vermont public
 school approval standards allows for full reimbursement, and the cost may be
 above that for public schools which, of course, meet the same standard.(FN9)
 In this case, as in Witters, the tuition reimbursement scheme involved here
 "creates no financial incentive for students to undertake sectarian
 education."  474 U.S.  at 488.  We leave for another day consideration of a
 case in which the reimbursement scheme might favor sectarian education.
      If there is a difference between Nyquist and the later Mueller and
 Witters decisions, it lies in the weight to be given the intervention of
 parental choice.  Nyquist considered this "only one among many factors to be
 considered,"  413 U.S.  at 781, but held that aid was prohibited whether
 labeled "a reimbursement, a reward, or a subsidy."  Id. at 786.  By the time
 of Mueller, the Court was willing to say that an "attenuated financial
 benefit, ultimately controlled by the private choices of individual parents"
 is not encompassed within the historic purposes of the Establishment Clause.

 

 463 U.S.  at 400.  Witters stressed that any financial benefit to religious
 institutions was the "result of the genuinely independent and private
 choice of aid recipients."  474 U.S.  at 487.
      Any aid flowing to religious schools from this decision is also the
 result of a parent's genuinely independent and private choice.  To the
 extent this factor has become more significant in the application of the
 Lemon test, it supports a conclusion that there is no Establishment Clause
 violation in this case.
      The only real distinction between this case and Mueller is that we are
 dealing with a payment rather than a tax deduction.  We agree that the
 benefits in Mueller are more "attenuated," but we cannot conclude that this
 consideration alone is determinative.  Indeed, Nyquist equated tax credits
 with tuition reimbursements, finding the same economic effect.  There is no
 critical difference between the tax credits in Nyquist and the deductions in
 Mueller.  See Luthens v. Bair, 788 F. Supp. 1032, 1039 (S.D. Iowa 1992).
 Whatever the device, the benefit here to sectarian education is indirect and
 the effect of parent choice, not government endorsement.
      Finally, we must consider the third part of the Lemon test.
 Ordinarily, this part is easily met in a parental choice system because the
 state has no involvement in the operation of the school selected by the
 parent.(FN10)  That is the case here because St. Andrews Academy is already
 approved to accept students, and tuition reimbursement will involve no

 

 greater governmental regulation or involvement.  As a non-Vermont school,
 St. Andrews cannot come into compliance with public school approval
 standards, with more detailed regulation by the state, in order to allow for
 full tuition reimbursement.  See 16 V.S.A. { 11(a)(8).
      We do not imply, however, that tuition reimbursement avoids excessive
 entanglement in all contexts or even in general.  Vermont has significantly
 modified its laws with respect to independent schools to avoid excessive
 entanglement with religion in the regulatory process and protect the free
 exercise of religion.  See DeLaBruere, 154 Vt. at 241-44, 577 A.2d at 257-
 59; Note, State Regulation of Private Church Schools: An Examination of
 Vermont's Act 151, 8 Vt. L. Rev. 75 (1983).  To allow students to accept
 tuition reimbursement, religious schools will have to go through the
 approval process that will increase governmental regulation.  Even more
 governmental regulation is the price for full tuition reimbursement under
 the current law.  We have not determined when government regulation of
 religious schools may cross the line and invalidate a tuition reimbursement
 system.
      Based on the three parts of the Lemon test, we conclude that
 reimbursement of tuition to plaintiff would not offend the Establishment
 Clause even if St. Andrews Academy is a sectarian institution.  Accordingly,
 we do not reach the issue of whether the superior court's determination that
 St. Andrews is sectarian was in error.
      In conclusion, we emphasize the narrowness of our decision based on the
 narrow record before us.  As in Witters, we decide only that giving tuition
 reimbursement to this plaintiff will not offend the Establishment Clause.

 

 See 474 U.S.  at 489-90.  In other cases, with a fuller record or different
 circumstances, the result may well be different.
      Reversed; cause remanded to determine the amount of tuition
 reimbursement to which plaintiff is entitled.

                                    FOR THE COURT:



                                    _____________________________
                                    Associate Justice



------------------------------------------------------------------------------
                                 Footnotes

FN1.    The "standards" of the Vermont Department of Education were not part
 of the record before the Board and are not available to us.

FN2.    If defendant's position were correct, the State Board's decision
 would have simply involved looking up St. Andrews Academy on its list and
 stating what the list said.  The State Board's decision never mentions such
 a list nor suggests that any such list would be definitive.  Defendant never
 argued to the State Board that the State Board had an approval list and
 should consult it.

FN3.    Effective June 1990, the Legislature amended 16 V.S.A. { 166 to
 establish two alternative methods for private schools, now termed
 "independent schools," to become authorized to meet the attendance
 requirement of students.  1989, No. 44, { 1.  One method is to become
 "approved" by meeting certain standards for private schools as evaluated by
 the State Board.  16 V.S.A. { 166(b).  The alternative is to become
 "recognized" by submitting certain information and assurances to the
 Commissioner of Education.  Id. { 166(c).  Only approved schools are
 eligible for tuition reimbursement under { 828.  The fact that there is an
 alternative route to become qualified to accept students does not change our
 conclusion about the meaning of { 166 and { 828.

FN4.    For example, Rice Memorial High School, a South Burlington
 parochial secondary school for which tuition payments were struck down in
 Swart v. South Burlington Town School District, 122 Vt. 177, 167 A.2d 514,
 cert. denied 366 U.S. 295 (1961), is approved by the Board pursuant to {
 166(b).
      The earlier version of the Directory was in evidence in this case
 before the superior court.  We take judicial notice of the current version
 of this public, and widely available, government document.

FN5.    Defendant has not made a separate claim under Chapter I, Article 3
 of the Vermont Constitution, and we do not reach that question.  We note,
 however, that Swart was decided under the First Amendment to the United
 States Constitution because this Court found that "[i]n the domain of
 religious liberty, the resolute history of the First Amendment seems the
 more demanding."  Swart, 122 Vt. at 184, 167 A.2d  at 518; see also Vermont
 Educ. Bldgs. Fin. Agency v. Mann, 127 Vt. 262, 269, 247 A.2d 68, 73 (1968)
 (in the Establishment Clause area, "the limits of the First Amendment of the
 Federal Constitution are more restrictive"); cf. Opinion of the Justices,
 616 A.2d 478, 480 (N.H. 1992) (proposed school choice plan that allows
 tuition reimbursement for sectarian schools violates provisions of New
 Hampshire constitution).  Of course, as pointed out in the text, these
 decisions refer to a First Amendment jurisprudence that has evolved markedly
 since they were issued.

FN6.    In recent decisions, other tests have emerged as possible
 successors to or replacements for the Lemon test, and commentators have
 speculated how school choice plans might fare under these alternative
 analyses.  See Comment, The Constitutional Implications of School Choice,
 1992 Wis. L. Rev. 459, 479-83, 486-87.  The United States Supreme Court has
 recently granted certiorari in a case to examine the continuing vitality of
 Lemon.  See Board of Educ. of Kiryas Joel Village School Dist. v. Grumet, 62
 U.S.L.W. 3368 (U.S. Nov. 30, 1993) (grant of certiorari).  Speculation on
 the future of Lemon is the grist of law review articles, not the decisions
 of courts, which must follow the law as it exists.  Moreover, our decision
 is fully consistent with the doctrinal development that may spur the
 emergence of a new Establishment Clause regime.

FN7.    The Court in Nyquist took judicial notice of enrollment data from
 publicly available government reports, exactly the type of information we
 have used here.  See Nyquist, 413 U.S.  at 768 n.23.

FN8.    An examination of the various districts indicates that roughly half
 of Vermont's 246 organized towns and cities, see 24 V.S.A. { 2-15 (listing
 Vermont towns and cities by county), are members of a unified district
 providing secondary education.  Approximately forty more, which include most
 of Vermont's most populous towns and cities, operate their own secondary
 schools.  It is clear that the percentage of students residing in towns
 that do not provide a secondary school is much lower than the percentage of
 towns that do provide a secondary school.

FN9.    Another reason why reimbursement above the average public school
 tuition is not possible in this case is that the authorization for such
 reimbursement became effective in 1991, well after the actions in issue
 here.  See 1991, No. 24, {{ 1, 3.  We have noted this change in the law to
 be clear that we have not decided whether reimbursement under the 1991
 scheme is consistent with the Establishment Clause.

FN10.     We do not believe that the third part of the Lemon test should be
 judged by the political divisiveness concern of Nyquist.  That concern is
 "confined to cases where direct financial subsidies are paid to parochial
 schools or to teachers in parochial schools."  Mueller, 463 U.S.  at 404
 n.11.  No such direct subsidy exists in this case.