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Summary of Nationwide Voucher Lawsuits
VERMONT: Chittenden Town Sch. Dist. v. Andrews, No. 97-275 (Sup. Ct. Vt. June 11, 1999).
In December of 1995, the Chittenden School Board adopted a new secondary-education tuition-reimbursement policy that would allow tuition to be paid to sectarian schools. The Commissioner of Education terminated state education aid to the district. The school district sued the Commissioner and the Vermont Department of Education in state court, claiming that a tuition program that does not exclude religious schools was constitutional.
The State Supreme Court held that exclusion of religious schools did not violate the Free Exercise Clause because the Vermont statute does not require parents to choose between following their religion and forfeiting government benefits.
The State Supreme Court held that exclusion of religious schools did not violate the Vermont Constitution. On the contrary, in the absence of adequate safeguards against the use of reimbursement monies to sectarian schools for religious worship, not excluding the sectarian schools would violate the Compelled Support Clause of Article 3 of the Vermont Constitution. The Compelled Support Clause states: "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?"
WISCONSIN: Miller v. Benson, No. 93-C-1063 (E.D. Wisc. March 14, 1995), vacated as moot, 68 F.3d 163 (7th Cir. 1995).
The Milwaukee Parental Choice Program (MPCP), enacted in 1989, pays for the education of children from poor families, namely those whose income was below 1.75 times the poverty level. As amended in 1993, the original MPCP permitted up to 1.5 percent of the student membership of the Milwaukee Public Schools to attend at no cost to the student any private nonsectarian school located in the city of Milwaukee. In 1995, the Wisconsin legislature amended the MPCP to include sectarian schools in the program. Parents of sectarian schoolchildren argued that the former exclusion of sectarian schools from the program denied them equal access to a government benefit based upon religious belief, and thus violated the Establishment Clause, the Equal Protection Clause, and the Wisconsin Constitution.
The Wisconsin Supreme Court held that the inclusion of religious schools did not violate the Establishment Clause because the amended MPCP passed the Establishment Clause three-pronged test first laid out in Lemon v. Kurtzman, 403 U.S. 602 (1971). First, the amended MPCP has a secular purpose. Second, the amended MPCP does not have the primary effect of advancing religion because it provides public aid to both sectarian and non-sectarian institutions (1) on the basis of neutral, secular criteria that neither favor nor disfavor religion; and (2) only as a result of numerous private choices of the individual parents of school-age children. Finally, the amended MPCP does not create an excessive entanglement between the State and religion. Under the amended program, the State is not given the authority to impose a "comprehensive, discriminating, and continuing state surveillance" over the participating sectarian private schools.
The Wisconsin Supreme Court held that the inclusion of religious schools did not violate the Equal Protection Clause because the amended MPCP was race-neutral and required participating schools to comply with the anti-discrimination provisions of 42 U.S.C. §2000d (Title VII).
The Wisconsin Supreme Court found no provisions of the Wisconsin Constitution to have been violated by the amended MPCP, including the state constitutional prohibition against state expenditures for the benefit of religious societies or seminaries (Article I, §18 of the Wisconsin Constitution).
MAINE: Bagley v. Maine Dep't of Educ., 728 A.2d 127 (Sup. Ct. Maine 1999).
Maine districts that do not have their own schools must provide tuition to resident families for use in other schools, through the State's education tuition program. Prior to 1981, parents were able to select religious schools for participation in Maine's tuition program. In 1981, however, an amendment to the statute made religious schools ineligible for the program. The Raymond School District in Maine did not have a high school and instead provided secondary education through Maine's tuition program. Five families from the town of Raymond enrolled their sons at an all-male, private Roman Catholic college preparatory school, located in Portland and operated by the Society of Jesus, a religious order. The families sued the State in state court, claiming that a tuition program that specifically excludes religious schools violates the Establishment Clause of the First Amendment, the Free Exercise Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Free Speech Clause of the First Amendment, and the Maine Constitution.
The State Supreme Court held that Maine's tuition program did not violate the Free Exercise Clause because the program did not burden the parents' fundamental right to send their children to religious schools. The Court cited Goodall v. Stafford County Sch. Bd., 60 F.3d 168, 171 (4th Cir. 1995): "It is well established that there is no substantial burden placed on an individual's free exercise of religion where a law or policy merely operates so as to make the practice of religious beliefs more expensive."
The State Supreme Court held that Maine's tuition program did not violate the Establishment Clause because the program did not sponsor or establish a religion. "Distilled to its essence, the Establishment Clause prohibits the government from supporting or advancing religion and from forcing religion, even in subtle ways, on those who choose not to accept it ? It simply does not speak to governmental actions that fail to support religion."
The State Supreme Court held that Maine's tuition program did not violate the Equal Protection Clause because the State had presented a compelling justification for the disparate treatment of the religious schools. The exclusion of religious schools from the tuition program was required in order to comply with the Establishment Clause. Otherwise, there would be a direct, substantial, and unrestricted financial benefit to religious schools, constituting an advancement of religion that would run afoul of the Establishment Clause.
The State Supreme Court held that Maine's tuition program did not violate the Free Speech: "The parents cannot assert that they have been denied a forum for any type of speech."
The State Supreme Court held that Maine's tuition program did not violate the Maine Constitution because the State Constitution was coextensive with the U.S. Constitution.
MAINE: Strout v. State of Maine Dept. of Educ., No. 98-1896, 1999 WL 329272 (1st Cir. May 27, 1999).
This was the same statutory scheme as in Bagley, above. Maine districts that do not have their own schools must provide tuition to resident families for use in other schools, through the State's education tuition program. Prior to 1981, parents were able to select religious schools for participation in Maine's tuition program. In 1981, however, an amendment to the statute made religious schools ineligible for the program. Several families enrolled their children at St. Dominic's Regional High School in Lewiston, Maine. The families sued the State in federal court, claiming that a tuition program that specifically excludes religious schools violates the Establishment Clause of the First Amendment, the Equal Protection Clause of the Fourteenth Amendment, the Free Exercise Clause of the First Amendment, the Due Process Clause of the Fourteenth Amendment, and the Speech Clause of the First Amendment.
The Court of Appeals held that Maine's tuition program did not violate the Establishment Clause because the program avoided what would otherwise be direct aid to religious schools, which conflicts with separation between Church and State.
The Court of Appeals held that Maine's tuition program did not violate the Equal Protection Clause because, as in the Establishment Clause context, "the state cannot be in the business of directly supporting religious schools." Given that there is no way to subsidize religious schooling without violating the Establishment Clause, the Maine tuition program with the religious school exclusion did not violate plaintiffs' Equal Protection rights.
The Court of Appeals held that Maine's tuition program did not violate the Free Exercise Clause because the Free Exercise Clause was not implicated in this case. First, some of the plaintiffs did not have a religious motivation for sending their children to St. Dominic's. Second, the statute did not prevent attendance at a religious school. Third, the state had not placed a "substantial burden on the observation of a central belief or practice ? education at a parochial school is not such a belief, for the Roman Catholic Church does not mandate it." Furthermore, even if this were a limit on free exercise, "the state has justified the limit by its purpose of avoiding violation of the Establishment Clause."
The Court of Appeals held that Maine's tuition program did not violate the Due Process Clause or the Speech Clause. The former was not violated because the fundamental right, embodied in substantive due process, to direct the upbringing and education of one's children "does not require the state to directly pay for a sectarian education." The latter claim was "meritless" and supported by "little more than academic articles."
