In its historic decision upholding Cleveland’s voucher program in June of 2002, the nation’s highest court ruled that parents may use public funding—as part of a neutral school choice program—to send their children to religious schools.  Unfortunately, state constitutional obstacles remain, and they are being invoked by opponents of school choice to thwart educational opportunity. The Institute for Justice has initiated a test case involving these obstacles in Vermont.
Despite the U.S. Supreme Court ruling, a provision of the Vermont Constitution continues to block parents like Mr. and Mrs. Anthony Genier and Drs. David Heaton and Judith Fisch from choosing religious schools for their children through the State’s “tuitioning” program.
Dr. Blane Nasveschuk of Rutland Town, Vt., knows all about Vermont’s discriminatory tuitioning policy. Rutland Town does not maintain a public high school, so the local school board, like many in the state, pays tuition for its residents to send their children to the schools of their choice, public or private, in-state or out-of-state. (Nasveschuk even used tuitioning funds to send his eldest son to a ski academy in Vermont.) But when he decided to send his two younger sons to Mount St. Joseph’s Academy, a Catholic school in nearby Rutland, the Rutland Town school board and the State refused tuitioning funds. Nasveschuk paid the tuition himself while his neighbors were given tuition grants to send their children to the schools of their choice, simply because they didn’t choose religious schools.
Thanks to its century-old tuitioning program, Vermont has a remarkable history of giving many parents freedom to direct their children’s education as they see fit. But by barring religious schools from the program, the State has taken that freedom away from certain individuals—those with religious beliefs and those who, for whatever reason, prefer a religious school for their children.
Nasveschuk’s sons have since graduated, but he remains outraged at the simple unfairness of the policy his tax dollars support. That’s why on March 20, 2003, Nasveschuk, in his capacity as a Vermont taxpayer, joined the Geniers and Heaton and Fisch to file a federal lawsuit challenging Vermont’s tuitioning policy as unconstitutional religious discrimination. They are represented for free by the Institute for Justice (IJ), a Washington, D.C.-based public interest law firm and the nation’s leading legal school choice advocate. The lawsuit, filed in the U.S. District Court for Vermont, is the third in IJ’s nationwide campaign to remove state-based barriers to school choice.
Vermont’s discriminatory policy puts it at the heart of the nationwide controversy over school choice. Following last year’s U.S. Supreme Court victory for vouchers, school choice opponents promised to use every tool at their disposal to stop choice—including using state policies and state constitutional religion clauses like Vermont’s to undercut the effectiveness of school choice by removing an entire set of options for parents, namely religious schools.
IJ believes that barring parents from selecting religious schools through a neutral school choice program is not only unfair and bad policy—it is an unconstitutional violation of parents’ rights to the free exercise of religion, guaranteed by both the First Amendment and the 14th Amendment’s Equal Protection Clause. IJ seeks to end Vermont’s history of discrimination—and to remove once and for all the state-level barriers that might hinder the implementation of effective school choice programs in the states.
The Convoluted Legal History of “Tuitioning” in Vermont
For many communities in Vermont, school choice is not a “policy option” or an “experiment”; it has been a way of life for well over a century. In Vermont, every school district has a legal duty to provide an education for its residents through the 12th grade. But about half of the towns in the state have too few students to warrant maintaining schools that go from kindergarten to the 12th grade—or simply choose not to do so. So under the “tuitioning” program in place since 1874, towns that do not maintain schools meet their legal duty by paying the tuition at the school of the parents’ choice—whether private or public, in-state or out-of-state—as long as the school is approved by the State’s board of education.
On paper, at least, many of Vermont’s parents have the right to send their children to the school they believe is best for their children. And for the first 90 years of tuitioning, this included the right to choose religious schools, something parents routinely did. But that changed in 1961 with a decision by the Vermont Supreme Court that kicked off a complex history of changing constitutional interpretations (twice resulting in the state’s highest court reversing itself) and bureaucratic defiance.
In 1961, the Vermont Supreme Court ruled in Swart v. South Burlington Town School Dist. that the tuitioning program violated the Establishment Clause of the federal Constitution by allowing parents to select a religious school for their children. (Importantly, however, the court also noted that the state’s own constitution—which has language that is different from the federal Constitution—is not as “restrictive” as the Establishment Clause. Therefore, the court said, permitting parents to tuition to religious schools would not violate Vermont’s Constitution.)
But the Vermont Supreme Court reversed that decision in 1994 in Campbell v. Manchester Board of School Directors, upholding the rights of parents to send their children to religious schools as part of a “neutral” school choice program—meaning a program that neither favors nor disfavors religion.  Just last year, the U.S. Supreme Court agreed when it upheld Cleveland’s voucher program.
And yet, even after the 1994 decision, the Vermont Department of Education persisted in excluding parents who select religious schools, including Nasveschuk. In fact, the Department threatened to cut off state aid to the Chittenden Town School Board in 1997 because Chittenden wished to offer tuitioning dollars to parents selecting religious schools. So Chittenden, represented by the Institute for Justice, filed a lawsuit challenging the policy. This time, the State came up with another defense; it contended that the Vermont Constitution would not allow the State to treat religion on a neutral basis—arguing, in effect, that its own state Constitution requires discrimination against religion.
This argument was not grounded in Vermont precedent. Indeed, the Vermont Supreme Court had repeatedly held—including in its 1961 decision—that the state Constitution was not as restrictive as the federal Constitution’s Establishment Clause. Shockingly, in 1999 the Vermont Supreme Court reversed itself and ruled that the Vermont Constitution does not permit parents to tuition their children to religious schools.
Out of that ruling arose the current situation, where both the U.S. Supreme Court (in its Cleveland voucher decision) and the Vermont Supreme Court have ruled definitively that the U.S. Constitution’s Establishment Clause sanctions the selection of religious schools through the tuitioning program—but the Vermont Supreme Court has barred religious options as a violation of the state Constitution.
State Constitutions and School Choice
The 1999 Chittenden decision relies on a specific provision of the Vermont Constitution prohibiting the establishment of religion—what IJ calls a “compelled support” clause—and argues that this clause should be read in a more “restrictive” manner than the federal Establishment Clause. The compelled support provision is not unique to Vermont; in fact, about 28 other states have similar clauses in their constitutions.
The common component of a compelled support clause is language providing that no one shall be “compelled” to attend or support a church or religious ministry without his or her consent. Sometimes the language will specifically include religious schools in the entities that cannot be supported, although Vermont’s clause does not reference religious schools:
That all persons have a natural and unalienable right, to worship Almighty God, according to the dictates of their own consciences and understandings, as in their opinion shall be regulated by the word of God; and that no person ought to, or of right can be compelled to attend any religious worship, or erect or support any place of worship, or maintain any minister, contrary to the dictates of conscience, nor can any person be justly deprived or abridged of any civil right as a citizen, on account of religious sentiments, or peculiar mode of religious worship; and that no authority can, or ought to be vested in, or assumed by, any power whatever, that shall in any case interfere with, or in any manner control the rights of conscience, in the free exercise of religious worship. Nevertheless, every sect or denomination of christians ought to observe the sabbath or Lord's day, and keep up some sort of religious worship, which to them shall seem most agreeable to the revealed will of God. 
Found mostly in the constitutions of states in the Great Plains and the East—and especially in the earliest state constitutions, like Vermont’s—these clauses were meant to prohibit the Colonial era practice of requiring church attendance and support for the colony’s established church, much like the federal Establishment Clause was intended to prohibit the establishment of a national church. They were never intended to limit the free exercise of religion by excluding believers from generally available state programs.
Vermont is also not the only place where a school choice program has been called into question under a state constitution’s compelled support clause. The very same Cleveland voucher program upheld by the U.S. Supreme Court was challenged in state court as a violation of Ohio’s compelled support clause; likewise, Milwaukee’s voucher program was challenged under a similar provision in Wisconsin. But both the Ohio and Wisconsin Supreme Courts found that neutral school choice programs are permissible under their states’ constitutions—and, importantly, that their compelled support provisions are not more restrictive than the federal Establishment Clause.
Despite their losses in Ohio and Wisconsin, school choice opponents are determined to use whatever legal weapons they can to stop choice, and with last year’s victory for vouchers in Cleveland, state constitutions’ religion clauses are the only weapons that remain. That is why IJ is committed to defending the rights of parents by ensuring that state constitutions like Vermont’s are not seen as more restrictive than the federal Constitution—for if they are, important federal rights will be lost.
Barring Religious School Options Tramples Federally Guaranteed Rights
The State of Vermont cannot interpret its own constitution as more restrictive than the federal Constitution without trampling the First Amendment right to freedom of religion and violating the Fourteenth Amendment’s guarantee of Equal Protection. The proper way to apply Vermont’s compelled support clause as both preventing the establishment of a state church and guaranteeing free exercise is to parallel the principle of neutrality enshrined in the U.S. Constitution and defined by the U.S. Supreme Court.
Although the Vermont Supreme Court essentially reversed its own 1961 Swart decision when it ruled in 1994 in Campbell that parents may send their children to religious schools using the tuitioning program, in both cases the court was responding to U.S. Supreme Court precedent, which, as it noted, had evolved greatly in the 33 years between.
In the 1960s and 1970s, the U.S. Supreme Court produced a spate of decisions regarding the Establishment Clause that were difficult to reconcile. However, in the 1980s, starting with Mueller v. Allen, the U.S. Supreme Court clarified its position and has since consistently held that programs that are religiously neutral and provide for independent choice are constitutional. Nonetheless, the Vermont Supreme Court in 1999 upheld the Department of Education’s discriminatory policy as consistent with the state constitution’s compelled support clause.
What the Vermont Supreme Court did not properly consider in 1999, and what the U.S. Supreme Court has made increasingly clear, was the supreme importance of state neutrality towards religion—and how the principle of neutrality necessarily limits how states may interpret their own constitutions’ religion clauses. The neutrality principle is enshrined in the U.S. Constitution’s two religion clauses, the Establishment Clause and the Free Exercise Clause. One clause cannot be read without the other. Together they warn that to restrict parents’ options is to trample federally guaranteed First Amendment rights to the free exercise of religious beliefs.
Ever since it first applied the Establishment Clause to the states in 1947, the U.S. Supreme Court has made it clear: “State power is no more to be used so as to handicap religions, than it is to favor them.” The Cleveland voucher decision demonstrates that school choice programs like Vermont’s can include religious options. In another long-running series of cases, the Supreme Court goes further, consistently holding that laws that single out religion for discrimination violate the First Amendment’s rights to free speech and freedom of religion, as well as the 14th Amendment’s guarantee of Equal Protection. Recent Supreme Court and Appeals Court cases that support IJ’s argument include:
U.S. Appeals Court
· Davey v. Locke (2002)—The U.S. Court of Appeals for the 9th Circuit struck down the State of Washington’s exclusion of religious options from an otherwise neutral college grant program. The court held that once a government creates a forum—whether a physical forum such as a public square or a fiscal forum such as a college grant program—it cannot discriminate against religion. The State of Washington defended its discriminatory policy by relying on its constitution. The court found Washington’s defense “less than compelling.”
U.S. Supreme Court
· Good News Club v. Milford Central School (2001)—The Court held that a school district that made its facilities available to any group that wished to discuss “instruction in any branch of education, learning, or the arts” could not exclude a group that wanted to sing songs and study the Bible. The Court held that such an exclusion discriminated against a religious viewpoint.
· Rosenberger v. University of Virginia (1995)—The Court held that the First Amendment prohibited the University of Virginia from refusing to fund the publication of a religious student publication while funding non-religious publications.
· Lamb’s Chapel v. Center Moriches Union Free District (1993)—The Court held that government action that discriminated against a religious viewpoint violated the First Amendment. The case concerned a school district in New York that had made its rooms generally available for such things as “social, civic and recreational meetings and entertainments” or “other uses pertaining to the social welfare.” A Christian group wanted to use some of the space to show a film about family values from a religious perspective. The Court held that the district could not deny the group access based on its religious viewpoint.
· Church of Lukumi Babalu Aye v. City of Hialeah (1993)—The Court held that a law prohibiting animal sacrifice violated the First Amendment. The Court reasoned, “At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs,” and concluded that “a law targeting religious beliefs as such is never permissible.”
· Employment Division v. Smith (1990)—The Court upheld a law that criminalized the possession of peyote because it was neutral with respect to religion. In so doing, however, the Court stated, “The government may not … impose special disabilities on the basis of religious view or religious status.”
· Widmar v. Vincent (1981)—The Court held that a state university in Missouri that made its facilities open and generally available to the public could not prevent groups from using the facilities for religious worship. The Court disallowed the university’s attempt to proscribe speech simply because the university disagreed with the speech. As Justice Stevens wrote in his concurrence, “Quite obviously, the university could not allow a group of Republicans or Presbyterians to meet while denying Democrats or Mormons the same privilege.” The Court rejected Missouri’s claim that its state constitution’s religion clauses justified the exclusion.
· McDaniel v. Paty (1978)—The Court invalidated Tennessee’s law disqualifying members of the clergy from holding public office. The Court concluded that a government could not “condition the exercise of one [right] on the surrender of another.”
Each of these cases supports the simple proposition that the State of Vermont cannot constitutionally discriminate against religious individuals or religious schools by excluding them from the benefits of the tuitioning system.
School Choice Moves From Defense to Offense
The Institute for Justice’s lawsuit in Vermont is the nation’s third school choice case to be filed following the U.S. Supreme Court victory for school choice. As with IJ’s other cases, the fight for school choice has moved from defense to offense.
One of the Institute’s primary missions is to advance parental choice in education. The Supreme Court victory at long last vindicated the principle that it is constitutionally permissible for parents to select religious schools through a neutral school choice program, so long as the decision is an independent one belonging to parents and religious schools are one choice amid a range of secular and religious options.
However, in order to fully realize the potential of school choice across the nation, it is essential to remove the remaining roadblocks posed by state constitutional religion clauses. Because much of the capacity of the private school system lies in religious schools, the viability of any school choice program passed by a state legislature (and sometimes the very passage of the program) hinges on the ability to include religious school options—among others—for parents. Now that the U.S. Supreme Court has removed any federal constitutional hurdles to school choice, IJ is finally free to proactively target these state constitutional barriers and clear the road for educational freedom.
Last year, IJ launched a case challenging Washington state’s Blaine Amendment, a different kind of state constitutional religion clause that has been used to try to eliminate religious options from school choice programs. It also filed suit in Maine, seeking to overturn a 1981 law that bars religious schools from participating in that state’s tuitioning program.
The rule established in the Vermont case will have nationwide implications, both for school choice and for other educational programs. Several states, for instance, give eligible students scholarships to attend private and public post-secondary institutions, but prohibit the students from using those funds in religious colleges. Such discrimination violates the First Amendment, which requires government neutrality toward religious individuals and institutions.
The Institute for Justice is the nation’s leading legal advocate for school choice. The Institute helped win a tremendous victory in the U.S. Supreme Court for school choice when it represented parents participating in Cleveland’s school choice program. IJ also successfully defended the school voucher program in Milwaukee and tax credit programs in Illinois and Arizona from legal attacks by school choice opponents, and it is currently litigating in defense of Florida’s statewide Opportunity Scholarships program.
Institute for Justice Clients
In addition to Nasveschuk, IJ represents two families who live in tuitioning towns, but currently pay tuition to send their children to religious schools. Mr. and Mrs. Anthony Genier of Middletown Springs send their daughter, Lindsay, to Christ the King School in Rutland. Dr. David Heaton and Dr. Judith Fisch of Rutland Town send their daughter, Rebecca, to Mount St. Joseph’s Academy in Rutland. All of IJ’s clients are dismayed that Vermont divides its citizenry into two groups—those who want their children to attend a religious school and those who don’t—and treats each group differently.
The lead attorney in this case is Institute for Justice Senior Attorney Richard Komer, who litigates school choice cases for the Institute. Prior to his work at the Institute, Komer worked as a civil rights lawyer for the federal government, working at the Department of Education and the Department of Justice, as well as at the Equal Employment Opportunity Commission. Komer is joined by Institute for Justice staff attorney Robert Freedman. Joining the Institute as local counsel is Orland Campbell, the plaintiff in Campbell v. Manchester Board of School Directors, and the only parent from a tuitioning town in 40 years to legally receive tuition payments for a child enrolled in a religious school. After winning his case, Campbell went to law school and became an attorney. He now practices in his hometown of Manchester, Vt.
Through strategic litigation, communications, training and outreach, the Institute for Justice advances a rule of law under which individuals can control their own destinies as free and responsible members of society. We litigate to secure economic liberty, school choice, private property rights, freedom of speech and other vital individual liberties, and to restore constitutional limits on the power of government. Through these activities we challenge the ideology of the welfare state and illustrate and extend the benefits of freedom to those whose full enjoyment of liberty is denied by government. The Institute was founded in 1991 by William H. Mellor and Clint Bolick.
For more information, or to arrange an interview with the Institute for Justice and its clients, please contact:
Lisa Knepper, Director of Communications
John E. Kramer, Vice President for Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203
Phone: (703) 682-9320
Fax: (703) 682-9321
 Through a school choice program in which the government neither requires student attendance at a religious school, nor bars students from attending such institutions.
 Zelman v. Simmons-Harris, 536 U.S. 639.
 16 V.S.A. 822.
 Campbell v. Manchester Board of School Directors, 641 A.2d 352 (Vermont, 1994), at FN 8.
 16 V.S.A. 822 (a)(1); 16 V.S.A. 166.
 Swart v. South Burlington Town Sch. Dist., 167 A.2d 514 (1961).
 See Swart at 517 and Vermont Educational Buildings Financing Agency v. Mann, 247 A.2d 68 at 73.
 Campbell v. Manchester Board of School Directors, 641 A.2d 352 (1994).
 Zelman v. Simmons-Harris, 122 S.Ct. 2460 (2002).
 Chittenden, supra.
 Chittenden, supra.
 Vermont Constitution, Chapter I, Article 3 (emphasis added).
 Unfortunately, “compelled support” clauses are not the only state constitutional barriers to school choice. So-called Blaine Amendments, named after a 19th century U.S. senator who spurred their adoption, are found in about 37 state constitutions, and many states have both compelled support and Blaine language. The Blaine Amendments’ anti-immigrant and anti-Catholic pedigree makes their use by school choice opponents particularly offensive. Choice opponents are attacking Florida’s Opportunity Scholarships program by relying on that state’s Blaine Amendment, and IJ is defending the program in court. IJ is also litigating in Washington state to establish that Blaine Amendments, like compelled support clauses, must not be used to bar religious options from neutral choice programs at the expense of important federal rights. For more information on school choice and state constitutions, please visit www.ij.org/cases/school.
 One decision, correctly, allowed states to provide textbooks to all students regardless of whether they attended a public, private or religiously affiliated school. Board of Education v. Allen, 392 U.S. 236 (1968). Another case, incorrectly, denied the ability of states to give instructional materials, such as maps, to students to use at religiously affiliated schools. Meek v. Pittenger, 421 U.S. 349 (1975). Books were acceptable; maps were not. This led to the famous quip by Senator Moynihan, “What about an atlas?”
 463 U.S. 388 (1983).
 See also Witters v. Wash. Dep’t of Services for the Blind, 474 U.S. 481 (1986); Zobrest v. Catalina Foothills School Dist., 509 U.S. 1 (1993); Rosenberger v. Rector & Visitors of Univ. of Va., 515 U.S. 819 (1995); Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms, 530 U.S. 793 (2000); Zelman v. Simmons-Harris, 122 S. Ct. 2450 (2002).
 Chittenden, supra.
 Everson v. Bd. of Educ., 330 U.S. 1 (1947).
 299 F.3d 748 (9th Cir., 2002).
 531 U.S. 98 (2001).
 515 U.S. 819 (1995).
 508 U.S. 384.
 Id. at 386.
 508 U.S. 520 (1993).
 494 U.S. 872 (1990).
 454 U.S. 263.
 Id. at 281.
 435 U.S. 618 (1978).
 In addition to lawsuits filed in Maine and Washington state last year, IJ is also defending Florida’s Opportunity Scholarships program, the nation’s first statewide voucher program, in litigation which began before the U.S. Supreme Court decision, and which has been attacked as a violation of Florida’s Blaine Amendment.