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.

Vouchers: No

Tax Credits: Yes

Existing Private School Choice Programs

Education Improvement Scholarships Tax Credit Program

Virginia Code Sections 58.1-439.25 to -.28

Relevant Case Law

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.

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.

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.

Analysis and Recommendations

Tax credit programs are Virginia’s best school choice option.

*Virginia’s constitution contains an express provision allowing publicly funded vouchers at private, non-religious schools. However, the Institute for Justice regards excluding the choice of religious schools as constitutionally questionable under the First Amendment and Equal Protection Clauses.

Model Legislation: Education Savings Account, Great Schools Tax Credit Program, Family Education Tax Credit Program

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