Chittenden Town School Dist. v. Dept. of Education

Litigation: Challenging Vermont’s practice of including sectarian schools as a choice for parents using town tuitioning funding for a child’s education. Opposed to including sectarian schools: National Committee for Public Education & Religious Liberty; Vermont NEA In support: Institute for Justice

Outcomes: On June 11, 1999, the Supreme Court of Vermont barred religious schools from participating in the state’s town tuitioning program, citing a violation of the Vermont state constitution’s compelled support clause. The Court distinguished its ruling from the federal constitution’s First Amendment Free Exercise and Establishment Clauses by reasoning that, if a school uses public funds to teach religion as well as secular subjects, the Vermont Constitution’s Compelled Support Clause is violated. The Court ruled that the federal First Amendment is not violated because Vermont is only prohibiting the funding of religious worship. Religious use of public K-12 funding continues to be litigated before the nation’s highest courts. The nation’s first school choice program, enacted in 1869, has been challenged primarily regarding participation by religious schools. It has been an active school choice program for over 150 years, albeit without benefit of religious school participation since 1961. Vermont’s Supreme Court ruled in 1961 that including religious schools in the Town Tuitioning Program first established in 1869 violated the First Amendment Establishment Clause of the U.S. Constitution. Swart v. South Burlington Town School District, 167 A.2d 514 (Vt. 1961). In 1994, the Vermont Supreme Court overturned this decision, but the Vermont Department of Education refused to allow parents to choose religious schools. Campbell v. Manchester Board of School Directors, 641 A.2d 352 (Vt. 1994).  

Why it Matters: The U.S. Supreme Court has concluded that prohibiting religious schools from participating in school choice programs, just because the schools are religious, is a violation of the Free Exercise Clause of the federal constitution’s First Amendment. Whether a state may prohibit religious schools from participating in school choice programs because some of the funds received through school choice funding may be used in support of religious instruction or activities is one of the most important questions of our time. This issue is currently being considered by the U.S. Supreme Court in Carson v. Makin (see “Maine” under “Active Litigation”).

Effects: When religious schools participate in school choice programs, there is no restriction against parents using school choice funding to enroll their children in whatever school is the best fit for the children to learn. When religious schools are barred from participation, an important option for many families is arbitrarily restricted by the state. As a result, programs that only allow certain types of educational providers to participate are limited in their ability to serve all children.