Virginia
Virginia’s constitution contains an express provision allowing the state to provide vouchers to students attending nonreligious private schools but excludes religious schools to comply with its Blaine Amendment. After Espinoza, discriminating against religious schools and the families who would like to attend them is unquestionably unconstitutional. The federal Constitution, wrote Chief Justice Roberts in Espinoza, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [educational choice program[s] . . . is odious to our Constitution.” Espinoza has opened the door for every type of educational choice program in Virginia to include religious options alongside nonreligious options.
Constitutional Provisions
Compelled Support Clause
“No man shall be compelled to frequent or support any religious worship, place, or ministry whatsoever .…” Virginia Const. Art. I, § 16.
Blaine Amendment
“The General Assembly shall not make any appropriation of public funds, personal property, or real estate to any church or sectarian society, or any association or institution of any kind whatever which is entirely or partly, directly or indirectly, controlled by any church or sectarian society .…” Virginia Const. Art. IV, § 16.
Education Articles
“The General Assembly shall provide for the compulsory elementary and secondary education of every eligible child of appropriate age, such eligibility and age to be determined by law. It shall ensure that textbooks are provided at no cost to each child attending public school whose parent or guardian is financially unable to furnish them.” Virginia Const. Art. VIII, § 3.
“The supervision of schools in each school division shall be vested in a school board, to be composed of members selected in the manner, for the term, possessing the qualifications, and to the number provided by law.” Virginia Const. Art. VIII, § 7.
“No appropriation of public funds shall be made to any school or institution of learning not owned or exclusively controlled by the State or some political subdivision thereof; provided, first, that the General Assembly may, and the governing bodies of the several counties, cities and towns may, subject to such limitations as may be imposed by the General Assembly, appropriate funds for educational purposes which may be expended in furtherance of elementary, secondary, collegiate or graduate education of Virginia students in public and nonsectarian private schools and institutions of learning, in addition to those owned or exclusively controlled by the State or any such county, city or town; second, that the General Assembly may appropriate funds to an agency, or to a school or institution of learning owned or controlled by an agency, created and established by two or more States under a joint agreement to which this State is a party for the purpose of providing educational facilities for the citizens of the several States joining in such agreement; third, that counties, cities, towns and districts may make appropriations to nonsectarian schools of manual, industrial or technical training and also to any school or institution of learning owned or exclusively controlled by such county, city, town or school district.” Virginia Const. Art. VIII, § 10.
“The General Assembly may provide for loans to, and grants to or on behalf of, students attending nonprofit institutions of higher education in the Commonwealth whose primary purpose is to provide collegiate or graduate education and not to provide religious training or theological education .…” Virginia Const. Art. VIII, § 11.
Relevant Case Law
Virginia College Building Authority v. Lynn, 538 S.E.2d 682 (Va. 2000)
The Virginia Supreme Court held that issuing bonds on behalf of religious institutions did not violate Virginia’s Compelled Support Clause because it did not result in governmental indoctrination, it determined eligibility for aid neutrally, and any funds received stemmed from the private choices of investors, not the government.
Phan v. Virginia, 806 F.2d 516 (4th Cir. 1986)
The 4th U.S Circuit Court of Appeals held that nothing in the Virginia Constitution prevents the state from reimbursing a disabled student attending an out-of-state religious college for incidental living expenses.
Miller v. Ayres, 191 S.E.2d 261 (Va. 1972)
The Virginia Supreme Court questioned the continued validity of Almond v. Day given the 1956 and 1971 rewrites of the state’s Blaine Amendment, which the Court encouraged in Almond. Nevertheless, the Court held that “loans” given to students without any requirement for repayment or public service amounted to “gifts” and gifts are not within the terms allowed by one of Virginia’s education provisions (Article VIII, Section 11).
Almond v. Day, 89 S.E.2d 851 (Va. 1955)
The Virginia Supreme Court held that using public funds to pay the private school education costs for veterans’ children violated the Virginia Constitution. By enabling the attendance of students who would likely not be there otherwise, the program provided impermissible support to the religious schools they chose.
Va. Att’y Gen. Op. No. 11-14 (May 25, 2012)
A tax-credit scholarship program would be constitutional.
1995 Va. AG LEXIS 61 (Va. AG 1995)
The Virginia attorney general opined that nothing in the Virginia Constitution prohibits busing of private school students, including those attending religious schools.
1994 Va. AG LEXIS 1 (Va. AG 1994)
The Virginia attorney general opined that the Virginia Constitution would permit a voucher program that included private schools, but not religious schools.
Va. Att’y Gen. Op. No. 588 (April 8, 1975)
A child attending a sectarian college may receive benefits under the Virginia War Orphans Education Act.
Va. Att’y Gen. Op. No. 110 (July 21, 1975)
Providing materials and services to private schools is unconstitutional, but the school board may allow private school students to participate in public school programs.
Va. Att’y Gen. Op. No. 343 (Feb. 17, 1971)
Students at sectarian colleges can receive state scholarships.
Existing Private School Choice Programs
Education Improvement Scholarships Tax Credit Program
Virginia Code Sections 58.1-439.25 to -.28
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.