Vouchers for Vermont

May 20, 2008

June 2003

Vouchers for Vermont

By Dick Komer

Vermonters by now are accustomed to the Vermont Supreme Court’s bold reinterpretations of that state’s constitutional provisions. The Vermont Supreme Court concluded that its constitution required the State to discriminate against parents wanting to send their children to religious schools.

As all true school choice aficionados know, Vermont and Maine have operated the nation’s oldest and most radical school choice programs since the late 1860s, when free public schooling was extended into the high school years. Approximately half the school districts in those states take advantage of a system called “tuitioning” for their high school students, under which the district, in lieu of operating a public high school, pays tuition to private schools or neighboring public schools on behalf of students whose parents have chosen those schools.

Until 1961, Vermont parents in tuitioning towns could select a religious school for their children’s education, and the districts routinely paid tuition on their behalf. The statute itself still permits it, but in that year the Vermont Supreme Court held that to do so violated the federal Constitution’s prohibition against establishment of religion. Faced with the question again in 1994, the Vermont Supreme Court correctly anticipated last year’s U.S. Supreme Court decision in Zelman v. Simmons-Harris and reversed itself. But when the Chittenden Town School Board tried to pay tuition on behalf of some residents sending their kids to one of Vermont’s three Catholic high schools, the Vermont Department of Education objected, and the district, represented by the Institute for Justice, was forced to sue.

Faced with the prospect of having to treat parents who chose religious schools equally with those choosing non-religious schools, the Vermont Supreme Court turned to the “compelled support clause” of its constitution. This clause, similar to language in 28 other state constitutions and modeled on Pennsylvania’s, states that no one shall be compelled to attend or support any church or religious ministry without his consent, and was designed to prevent the establishment of state religions. (Pennsylvania was the only one of the original 13 states not to have an established state religion. Virginia, often thought of as the birthplace of American religious liberty because of Thomas Jefferson’s later activities, was a relative Johnny-Come-Lately to the principles of religious liberty.) Despite the plaintiffs’ objections that this interpretation violated various federal constitutional rights to discriminate against parents choosing religious options for their children’s schooling, the court reinterpreted this language to forbid equal treatment of their selections.

So once again IJ turns its attentions to the Green Mountain State, with the filing on March 20 of Genier v. McNulty in federal district court. IJ represents residents of two tuitioning towns, Rutland Town and Middletown Springs. We assert that Vermont’s actions have violated their federal constitutional rights to free speech, free exercise of religion, and equal protection of the laws as well as the Establishment Clause. Nearly as many states have “compelled support” language in their state constitutions as have the infamous “Blaine Amendments” that IJ has so often confronted. And as the Vermont Supreme Court has shown, compelled support language can be twisted into a similar vehicle for discrimination. The time is ripe to confront this aberrant interpretation and quash it before it multiplies.

Dick Komer is an IJ senior attorney.

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