Vermont Supreme Court rules against vouchers for religious schools

Monday, June 14, 1999

Vermont's high court has ruled that the state cannot provide vouchers to students to attend sectarian schools because of a state constitutional provision that bars the government from compelling public support for religious institutions.

The Vermont Supreme Court's decision, issued on June 11, is the fourth in a series of rulings in the nation on whether government can provide financial support to students attending religious schools without violating the separation of church and state.

Ohio and Wisconsin's high courts have upheld voucher programs, while Maine and Vermont have invalidated them. The Ohio and Vermont high court decisions cannot be appealed to the U.S. Supreme Court, because they were decide solely on state constitutional grounds. The Wisconsin high court decision was appealed to the U.S. Supreme Court, which voted 8-1 late last year not to review the state court decision. The Maine high court decision is likely to be appealed to the U.S. Supreme Court.

In a variation on government-sponsored voucher programs, Arizona law created tax credits for parents who provided money for state scholarships for private schools, including religions ones. In January, the Supreme Court of Arizona ruled that the state tax credit does not violate the establishment clause of the First Amendment. That decision has been appealed to the U.S. Supreme Court.

Judge John A. Dooley, writing for the Vermont high court, said that the decision in Chittenden Town School District v. Vermont Department of Education need only be based on the Vermont Constitution, not whether the situation would violate the establishment clause of the First Amendment. The school board in Chittenden, Vt., which does not have a high school, decided to pay tuition for area students to attend a nearby Catholic school. The school starts each day with prayer and requires students to attend church services.

The court found that the Mount Saint Joseph Academy, the Catholic school in Rutland, was a place of worship that citizens could not be required to financially support because of Article 3 of the state constitution. Article 3, in part, states 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.”

Opponents of voucher programs lauded the Vermont ruling as victory for church-state separation.

“The Vermont Supreme Court's ruling offers a clear and convincing explanation of why tax dollars should not be used to subsidize religious schools under state constitutional law,” said Elliot Mincberg, legal director and vice president of People for the American Way, a nonproft civil rights group.

In striking down the Vermont voucher plan, Dooley wrote that the court saw “no way to separate religious instruction from religious worship.” Dooley, moreover, said the court was not convinced that the state's constitutional drafters had “authorized public financing of religious education.”

Eugene Volokh, a constitutional law scholar and professor at UCLA, says the Vermont decision essentially allows government to discriminate against religion.

In an article to be published in the forthcoming Notre Dame Journal of Law, Ethics, and Public Policy, Volokh states that “there should be no denying that a constitutional rule excluding religious schools from generally available benefits rests on the theory that discrimination is constitutionally mandated.” Volokh continues that he does not believe it is constitutionally mandated that government must treat religious believers and nonbelivers differently.

“I believe that government preferences for religion, whether in the form of special benefits going to one religion or to all religions, or government speech endorsing one religion or all religions, are generally unconstitutional,” Volokh wrote. “But equal treatment of religious and nonreligious people and institutions is perfectly fine, and such equal treatment maintains the separation of church and state by keeping the government scrupulously separate from people's decisions about religion.”

Mincberg, however, said that Volokh's “arguments confuse a government decision not to fund something with discrimination.”

“Even outside the establishment clause arena, the Supreme Court has said over and over again that the failure to fund something does not amount to discrimination,” Mincberg said. “The Supreme Court has said there is a fundamental right to abortion, but not that the government has to fund it.”