Opposition Brief — Andrews v. Vermont Department of Education

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IN THE

Supreme Court of the United States

CYNTHIA ANDREWS et vir, et al.,

Petitioners,

Vv.

VERMONT DEPARTMENT OF EDUCATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

Vermont Supreme Court

BRIEF IN OPPOSITION OF

RESPONDENTS ELIZABETH SOJOURNER, ET AL.

MITCHELL L. PEARL ROBERT H. CHANIN *

LANGROCK SPERRY & WOOL JEREMIAH A. COLLINS

P.O. Drawer 351 JOHN M. WEST

Middlebury, VT 05753 BREDHOFF & KAISER, P.L.L.C.

(802) 388-6356 805 Fifteenth Street, N.W.

JoEL D. Cook Suite 1000

VERMONT-NEA Washington, D.C. 20005

10 Wheelock Street (202) 842-2600

Montpelier, VT 05602

(802) 223-6375 * Counsel of Record

WILSON-EPES PRINTING Co., INC. - (202) 789-0096 - WASHINGTON, D.C. 20001

® QF v0

QUESTION PRESENTED

Where a State pays tuition to private schools for in-

structing students in secular subjects, but refuses to pay

tuition for students to attend pervasively sectarian schools

because the public funds would be used to finance reli-

gious instruction and other religious activities, does that

refusal violate the Free Exercise rights of parents who

choose to have their children attend a pervasively sectarian

school but whose religion does not require such at-

tendance?

(i)

TABLE OF CONTENTS

QUESTION PRESENTED pnncittbicietsteinscitccaplisan titan

BABE OF AUTHORITING .....cocccecoccconconcescscscessnteserses:

STATEMENT OF THE CAGRE nnn.necncccccoceoceseececscces. cs,

eee eee

B. Proceedings Below

REASONS FOR DENYING THE WRIT ......................-

I.

II.

ITI.

CONCLUSION ....

PR 4 9 5S aeDeomanens

RESOLUTION OF THE IDIOSYNCRATIC

QUESTION PRESENTED BY THIS CASE

- WOULD PROVIDE NO GUIDANCE ON THE

FUNDAMENTAL QUESTIONS RAISED BY

PROGRAMS THAT PROVIDE PUBLIC

ASSISTANCE TO SECTARIAN PRIVATE

i ett SOD AD

THERE IS NO CONFLICT AMONG THE

LOWER COURTS WITH RESPECT TO THE

QUESTION PRESENTED ...W02wo.. ee eee

THE DECISION BELOW DOES NOT CON-

FLICT WITH ANY DECISION OF THIS

3 EE ae

(iii)

12

17

19

la

iv

TABLE OF AUTHORITIES

CASES Page

Bagley v. Raymond School Dep’t, 728 A.2d 127

(Me.), cert. denied, 68 U.S.L.W. 3247 (U.S. Oct.

BE, BG missin cteatitincncidinendstencedn dine 14

Board of Educ. of Kiryas Joel Village Sch. v.

Groemet, 612 TS.. 6BT (IGOR) .onccccvccccscsacnsecciissssases 8

Brusca v. Missouri, 332 F. Supp. 275 (E.D. Mo.

1971), aff'd, 405 U.S. 1050 (1972) .................... 12, 14, 15

Buckley v. Valeo, 424 U.S. 1 (1976) .......................- 14

Church of the Lukumi Babalu Aye, Inc. v. City of

Hialeah, 608 U.S. 620 (1998) ...........0cccecccccecesceeee 17, 18

Columbia Union College v. Clarke, 159 F.3d 151

(4th Cir. 1998), cert. denied, 119 S. Ct. 2357

DD sinisciesktetibels debs dicponntehamnsiniadsmpersocingenins 13, 15, 16

Employment Div. v. Smith, 494 U.S. 872 (1990)... 17

Goodall v. Stafford County Day Sch. Bd., 60 F.3d

168 (4th Cir. 1995), cert. denied, 516 U.S. 1046

CUE ca kisccecksescctctenawiacitesicelseaceniin cccehdepaagaeaiiianaaan 12,15

Harris v. McRae, 448 U.S. 297 (1980) .................... 14

Hartmann v. Stone, 68 F.3d 973 (6th Cir. 1995) ..13, 15, 16

Hernandez v. Commissioner, 490 U.S. 680 (1989).. 11

Jackson v. California, 460 F.2d 282 (9th Cir.

DID sists a cnsid tata caches egeacaecdipualaticibatiabianine 15

Luetkemeyer v. Kaufmann, 364 F. Supp. 376 (W.D.

Mo. 1973), aff’d, 419 U.S. 888 (1974) ................ 15

Lyng v. Northwest Indian Cemetery Protective

Ase’n, 465 USB. 489 (19GB) .....nnnnccccnccnsnctisntetosncntess 14

Maher v. Roe, 482 U.S. 464 (1977) ........-..--cc---cc0-00 14

McCarthy v. Hornbeck, 590 F. Supp. 936 (D. Md.

fs SRR SRT Re ECR RRNA eo ARNIS 15

McDaniel v. Paty, 485 U.S. 618 (1978) .................. 17,18

Miller v. Benson, 878 F. Supp. 1209 (E.D. Wis.),

vacated as moot, 68 F.3d 163 (7th Cir. 1995)... 15

National Endowment for the Arts v. Finley, 118

Ce, Se Se ie cccecsuuthinmaiiaintanien 14,18

Nieuwenhuis v. Delavan-Darien Sch. Dist. Bd. of

Educ., 996 F. Supp. 855 (E.D. Wis. 1998)........ 15

Norwood v. Harrison, 413 U.S. 455 (1973) .......... 14

Peter v. Wedl, 155 F.3d 992 (8th Cir. 1998) ..12, 15, 16, 17

Vv

TABLE OF AUTHORITIES—Continued

Page

Regan v. Taxation with Representation, 461 U.S.

I: I hic ncbnshanntaty darahndiae iii ae a 14

Roemer v. Maryland Public Works Board, 426 U.S.

UE AE Secale lati initdnen diana ie ca 15, 16

Rosenberger v. Rector and Visitors of the Univer-

sity of Virginia, 515 U.S. 819 (1995) _....... 17, 18

Rust v. Sullivan, 500 U.S. 173 (1991) 000002. 14

Sherbert v. Verner, 374 U.S. 398 (1963) ................ 8,14

Strout v. Albanese, 178 F.3d 57 (1st Cir.), cert.

denied, 68 U.S.L.W. 3129 (U.S. Oct. 12, 1999)... 14

Thomas v. Review Board, 450 U.S. 707 (1981)... 11

Witters v. Washington Comm’n for the Blind, 771

P.2d 1119 (Wash.), cert. denied, 493 U.S. 850

BRR E a Dare tomndar Neo eater I A NN eae A 15

CONSTITUTIONAL AND STATUTORY PROVISIONS

Constitution of the United States

Amend. I

Establishment Clause ...................... 6, 9, 10, 11, 12

Free Exercise Clause ........................-.--.---- passim

Free Speech Clause .............................. 6, 10, 11, 12

Amend. XIV, Equal Protection Clause ......6, 10, 11, 12

Vermont Constitution, Chapter I, Art. 3 ................. 6, 7

re ie Oe ND chk ik es ee 2

BO A wiiied ps nnitadstccivnuuanicdbicsshsl cca Rea 1

BO PIE ithsentthcciciccendinctdieiah namie t Ree 1

26 V.BAs 3906 ............<... adbithibaitatahcliiadeniitia isa 2

In THE

Supreme Court of the United States

No. 99-628

CYNTHIA ANDREWS et vir, et al.,

¥ Petitioners,

VERMONT DEPARTMENT OF EDUCATION, et al.,

Respondents.

On Petition for Writ of Certiorari to the

Vermont Supreme Court

BRIEF IN OPPOSITION OF

RESPONDENTS ELIZABETH SOJOURNER, ET AL.

Respondents Elizabeth Sojourner, Frances Love, Harriet

Thorne, Rev. Ronald Benedict, Richard Clark, Hugh

Short, and John Vita (“respondents”), citizens and tax-

payers of the town of Chittenden, Vermont, who inter-

vened as defendants in this lawsuit, respectfully ask this

Court to deny the Petition for a Writ of Certiorari.

STATEMENT OF THE CASE

A. Factual Background

Vermont requires school districts to provide their stu-

dents with a high school education, but allows a district

to do so either by maintaining its own high schools or by

paying tuition to other approved public or independent

(i.e., private) high schools selected by the students’ par-

ents. See 16 V.S.A. §§ 822, 824. A private school can

2

be approved for this purpose if, inter alia, the Vermont

Board of Education determines that the school’s educa-

tional program includes a satisfactory minimum course of

study and the school has sufficient resources and a quali-

fied faculty. See 16 V.S.A. §§ 166(b), 906.

The Chittenden Town Schoo! District (“District”), lo-

cated in Rutland County, Vermont, does not operate a

high school, but instead pays tuition for its students to

attend. other public or independent high schools. There

are six public high schools within Rutland County that are

available to students from Chittenden, and those students

also can choose to attend approved public or independent

high schools within or outside the State of Vermont. Stipu-

lation Regarding Facts of the Case (“Stip.”) 44 11-15.

This case arose when, in May 1996, the District’s

School Board voted to pay tuition to Mount Saint Joseph

Academy (“MSJ”), a Catholic high school in Rutland

County that is attended by a number of students from

Chittenden.

MSJ is a pervasively sectarian private school, “in which

the secular and sectarian aspects of [the] educational pro-

gram are intertwined.” App. 4. The school is owned and

operated by the Sisters of Saint Joseph, under the author-

ity of the Roman Catholic Diocese of Burlington. App. 3.

All students at MSJ are required to complete courses in

theology, entitled Salvation History, Sacraments, Ethics

and Commitment. App. 4.1 The school day begins with

1 MSJ describes its theology curriculum as follows:

During a four year period, the development of spirituality is

found through liturgy, prayer, retreat and experiential learning

activities. ... Through the historical and biblical study of our

faith roots, presentations, and discussions on the Gospels and

lives of Christian leaders, students build a foundation for the

development of their individual spiritual lives. [Jd.]

3

a prayer, to which all students are required to give at-

tention. Id. Teachers also are encouraged to begin each

class during the day with a prayer. Stip. 478. All stu-

dents, including non-Catholics, are required to attend a

monthly celebration of the Roman Catholic mass led by

a priest, as well as an annual spiritual retreat, which in-

cludes prayers and a mass, and a twice-yearly celebration

of the Sacrament of Reconciliation. App. 4-5. All faculty

are required to adhere to Catholic doctrine in their teach-

ings. App. 5. A central objective of MSJ’s educational

program is to have students “witness a sense of Catholic

identity—one that is rooted in an understanding of the

Gospel of Jesus as proclaimed within our Catholic tradi-

tion.” Stip., Exh. P, p. 1; see App. 4.2

The tuition payments authorized by the Chittenden

Board were to take the form of a check drawn on the

Town’s public funds and sent directly to MSJ. Stip. € 46.

The payment would be made with “no restrictions on the

type of activities or programs for which [the] funds may

be used,” id., and “[t]he Chittenden School District has

never requested or received, and does not intend to re-

quest or receive, any representations from MSJ that public

moneys will not be spent on religious observance, inculca-

tion of religious values, or on religious education,” id.

49. The money would be placed in MSJ’s general oper-

ating account, and MSJ does not separately account for

sectarian and secular expenditures. Id. ¥ 83.

2 One of MSJ’s two classroom buildings contains a large chapel

and is crowned by a large cross. Stip. { 70. That building also con-

tains the congregational administrative offices of the Sisters of

Saint Joseph, the living quarters of the President of the order, and

a gift shop that sells religious objects. Jd. The building is con-

nected to the former convent house of the Sisters of Saint Joseph

(now an assisted care living facility operated by the Sisters and

used principally by them) by a structure that contains the living

quarters of six of the Sisters. Jd. 1 69. Crucifixes or crosses hang

on the walls of most MSJ classrooms. Jd. { 70.

4

By making unrestricted tuition payments to MSJ, the

District would “expend public money on religious educa-

tion.” App. 12.3 Indeed, because the money could be

used to finance MSJ’s required religious services and the

upkeep of its chapel, public funds would be expended not

only on religious education, but on religious worship as

well.

There is no evidence that any student attends MSJ be-

cause his or her religious beliefs require such attendance.

Of the seven families whose reasons for choosing MSJ

are a matter of record, five had no religious motivation

at all, but focused on such considerations as the school’s

“discipline,” “structured environment,” “value-based edu-

cation,” “small classes” and “good educational reputation.”

Stip. 4 22-24, 26, 28. One parent stipulated that she

chose MSJ for her daughter “because of her religious be-

liefs,” without further elaboration, id. { 21, while for one

other parent, in addition to a variety of non-religious rea-

sons for selecting MSJ, “MSJ’s Catholic basis was also

very important,” id. € 25._In no instance does the stipu-

lated record suggest that any parent’s religion required

that a child attend a Catholic school.

B. Proceedings Below

The Vermont Department of Education (“Department”)

responded to the District’s action by terminating all gen-

eral state aid to the District, on the ground that the

District’s decision to pay tuition to MSJ was unconstitu-

tional. See Petition for a Writ of Certiorari (“Pet.”) at 5.

3 These payments would produce a substantial financial benefit

for MSJ. The school expects that its enrollment will increase if the

courts sustain the District’s decision to pay tuition to MSJ, Stip.

7110, and the increased tuition MSJ thereby would receive would

greatly exceed any increased costs associated with the additional

students, id. ] 109.

5

The District brought suit against the Department in state

court, seeking a declaration that its decision to pay tuition

to MSJ was “in compliance with the Constitution of the

State of Vermont and the United States Constitution.”

Order of the Superior Court dated October 17, 1996,

{2.4 The Department counterclaimed, seeking a declara-

tion that the District’s decision to make tuition payments

to MSJ violated the Federal and State Constitutions, and

requesting an injunction. App. 6.

Petitioners Cynthia and Douglas Andrews, et al.—

parents who are sending children to MSJ and who seek

payment of the MSJ tuition by the District—were allowed

to intervene. However, their request to file a complaint

in intervention was disallowed, and petitioners’ “participa-

tion in th[e] action [was] limited to litigation of the

claims and defenses of plaintiff Chittenden School Dis-

trict.” Order of the Superior Court dated February 26,

1997. Respondents Elizabeth Sojourner, et a/.—residents

of the Town of Chittenden who oppose the use of their

state and local tax payments to fund religious education

and other religious activities—also were allowed to inter-

vene. App. 6-7.

The superior court granted the Department’s motion

for summary judgment, concluding that “tuition payments

from a school district to pervasively sectarian high schools

. . would have the effect of a direct subsidy to religious

schools in violation of the United States and Vermont

Constitutions.” App. 7.

The District appealed from the superior court’s decision,

advancing only two arguments: “that (1) tuition payment

to sectarian schools does not violate either the United

States Constitution or the Vermont Constitution as long

#The District initially asserted other claims as well, but they

were withdrawn. Jd. See also App. 6 and n.1.

6

as it is based on a parent’s free choice of educational

provider, and (2) exclusion of sectarian schools from

reimbursement violates the Free Exercise Clause of the

First Amendment to the United States Constitution.”

App. 7-8. The District did not contend that such exclu-

sion violates the Free Speech Clause or the Equal Pro-

tection Clause.> Nor did petitioners make such conten-

tions; indeed, they could not have done so under the terms

of their limited intervention.®

The Supreme Court of Vermont affirmed, holding that

the payment by a public school district of tuition for

religious instruction violates Chapter I, Art. 3 of the

Vermont Constitution, which provides, inter alia, “that no

person ought to, or of right can be compelled to...

support any place of worship, or maintain any minister,

contrary to the dictates of conscience.” Thus the Court

“decide[d] this case based solely on the Vermont Con-

stitution and, since it is dispositive, [did not] need [to]

consider whether the Establishment Clause of the First

Amendment would also prohibit the tuition reimburse-

ment policy at issue here.” App. 15.

In deciding the state-law question presented to it, the

Vermont Court emphasized that its holding was based on

“the absence of adequate safeguards against the use of

[public] funds for religious worship.” App. 2. The Court

explained:

5 See Appellants’ Opening Brief [in the Vermont Supreme Court]

at 1, 11, 25 (asserting that the exclusion of MSJ from the tuition-

ing program would violate the Free Exercise Clause, but making

no assertion that the Free Speech Clause or the Equal Protection

Clause would be violated); Appellant’s Reply Brief at 10 (same).

The District had not asserted Free Speech or Equal Protection

claims in its complaint. See supra at 5.

6 See Plaintiff-Intervenors-Appellants [sic] Appeal Brief; Reply

Brief of Plaintiff-Intervenor/Appellants.

7

We are not dealing here with the myriad ways that

a public school district can subsidize education in a

religious school by paying for expenses that occur

whether or not the school was sectarian... . Nor

is this a case where the amount of the subsidy is so

small that it clearly covers only the cost of secular

educational expenses. ... Nor... is the issue that

education occurs in a religious school, rather than

the content of that education. In this case, the financ-

ing scheme can, and presumably will, directly pay

for religious instruction.

* * * *

Thus, we conclude that the Chittenden School Dis-

trict tuition-payment system, with no restrictions on

funding religious education, violates Chapter I, Arti-

cle 3. In expressing this conclusion, we think it

appropriate to state what we have not decided. The

major deficiency in the tuition-payment system is

that there are no restrictions that prevent the use of

public money to fund religious education. . . . We

express no opinion on how the State of Vermont can

or should address this deficiency should it attempt

to craft a complying tuition-payment scheme. We

decide only that the current . . . system, with no

restrictions on the purpose or use of the tuition funds,

violates Article 3.

App. 50-52.

The Court then turned to the only other issue that had

been presented to it: whether Vermont’s refusal to fund

religious education violates the Free Exercise Clause. The

Court observed that the limited nature of its holding

eliminated the predicate for the District’s Free Exercise

claim:

The Free Exercise argument is premised on plain-

tiffs assumption that we would conclude that chil-

dren who attend religious schools may not receive

8

public educational funding, while children who attend

public schools may. This is not our ruling. We have

determined only that public funds may not pay for

religious worship within the meaning of Article 3,

wherever it occurs.

App. 53 (emphasis added).

Because the Court’s holding was entirely consistent

with the principle of “neutrality toward religion,” App. 53

(quoting Board of Educ. of Kiryas Joel Village Sch. v.

Grumet, 512 U.S. 687, 696 (1994)), and “today’s ruling

requires no one ‘to choose between following the precepts

of [his or her] religion and forfeiting tenefits’ that would

Otherwise be available from the government,” App. 54

(quoting Sherbert v. Verner, 374 U.S. 398, 404 (1963) ),

the Court concluded that no colorable Free Exercise claim

was presented. /d.

The Andrews Intervenors have petitioned for certiorari.

The Chittenden Town School District has not. Rather, in

March 1999, the District revised its tuition policy “to

prohibit the payment of tuition to sectarian schools,” on

the ground that “payment of tuition to religious schools

supports sectarian causes and is thus, an improper use of

public funds.” 7

7 Letter from Chittenden Superintendent of Schools William J.

Mathis to Richard Komer and Jack Facey, dated March 16, 1999

(reprinted as an appendix to this brief). Accordingly, there no

longer is any dispute between the original parties to this litigation

—the District and the Department. However, the case technically

is not moot, as petitioners could seek reimbursement of the tuition

they paid MSJ during the period that the District had authorized

the payment of the tuition out of public funds.

9

REASONS FOR DENYING THE WRIT

The Petition does not properly set forth the sole ques-

tion that actually is presented by this case. Given the

facts of the case and the limited issues raised and decided

below, the only question presented for possible review is

whether, where a state pays tuition to private schools for

instructing students in secular subjects, but refuses to pay

tuition for students to attend pervasively sectarian schools

because the public funds would be used to finance reli-

gious instruction and other religious activities, the state’s

refusal to fund such activities violates the Free Exercise

rights of parents who choose to have their children attend

a pervasively sectarian school, but whose religion does not

require such attendance.

That idiosyncratic question does not warrant review by

this Court. The question is, at most, tangential to the

constitutional controversy over public assistance to sec-

tarian private schools, and its resolution would provide

no guidance as to the more fundamental Establishment

Clause questions involved in that controversy. Indeed,

resolving the question presented here would not even de-

termine the constitutionality of the funding program in-

volved in this particular case. (Point I.) Furthermore,

there is no conflict among the lower courts with respect

to the question presented (Point II), nor does the decision

below conflict with any decision of this Court. (Point III.)

Accordingly, the petition for certiorari should be denied.

I. RESOLUTION OF THE IDIOSYNCRATIC QUES-

TION PRESENTED BY THIS CASE WOULD PRO-

VIDE NO GUIDANCE ON THE FUNDAMENTAL

QUESTIONS RAISED BY PROGRAMS THAT PRO-

VIDE PUBLIC ASSISTANCE TO SECTARIAN PRI-

VATE SCHOOLS

Petitioners acknowledge—indeed, they are at pains to

demonstrate—that cases involving public assistance to pri-

10

vate sectarian schools, including tuition voucher programs,

tuition tax credit programs, and other “school choice”

programs, generally present questions under four discrete

provisions of the United States Constitution: the Estab-

lishment Clause, the Free Exercise Clause, the Free Speech

Clause, and the Equal Protection Clause. See Pet. at

15-19. Although petitioners declare that “[t]his case sits

at the crossroads of [the issues presented by] all of these

[provisions],” id. at 19, the case actually sits on a small

side road.

The threshold question that has generated the most

litigation in this area is whether, and to what extent, the

Establishment Clause allows the use of public funds to

pay tuition for students to attend sectarian private schools.

See cases cited in Pet. at 15-17 and nn. 11-12; id. at

28-29, n.16. In asserting that “the questions presented

{in this case] are of national importance and affect

education-reform efforts across the nation,” id. at 28, peti-

tioners confirm the primacy of the Establishment Clause

issue. See id. (declaring that “educational reform . . .

initiatives have often been hamstrung and delayed by...

Establishment Clause challenges”); id. at 29 (declaring

that “[t]he hope for these and other educational-reform

efforts depends on a clear ruling from this Court that

. such initiatives are consistent with the Establishment

Clause’s . . . mandate”).

But, as petitioners acknowledge, see Pet. at 15 n.11,

no Establishment Clause question is presented in this case,

because the Vermont Court held that the tuitioning pro-

gram at issue is prohibited by the Vermont Constitution.

See supra at 6. As a result, this case does not afford

this Court an opportunity to address the fundamental

federal constitutional issue presented by “school choice”

programs. Furthermore, even if the question petitioners

; 11

seek to raise—viz., whether the United States Constitu-

tion requires that public funds be made available to sec-

tarian private schools in cases of this nature—might other-

wise be thought to merit review, in the typical “school

choice” case that question is intertwined with the question

of whether the Establishment Clause prohibits such fund-

ing, and the two questions bear directly on each other.

See cases cited in Pet. at 15-16 and nn. 11-12. It would

not be productive for the Court to review this atypical

case, in which the question presented by petitioners is not

accompanied by the fundamental and interrelated Estab-

lishment Clause question that must be considered in

arriving at any definitive conclusion as to the constitu-

tionality of the kind of government funding petitioners

advocate.

Moreover, petitioners indicate that three distinct con-

stitutional claims can be advanced in support of demands,

such as they make here, for public funding of sectarian

schools: under the Free Exercise Clause, the Free Speech

Clause, and the Equal Protection Clause. See Pet. at 8.

But only one of those three claims—a Free Exercise

claim—was advanced in this case. Petitioners do not

attempt to invoke the Equal Protection Clause, see Pet.

at i (Questions Presented); and, although they purport to

present a question under the Free Speech Clause as well

as under the Free Exercise Clause, id., they are precluded

from doing so, inasmuch as they did not advance the Free

Speech claim below. See supra at 63

8 As petitioners appear to recognize, see Pet. at 16 n.12; id. at 18,

in this context claims under the Free Exercise Clause are by no

means equivalent to claims under the Free Speech and Equal Pro-

tection Clauses. The Free Exercise Clause is implicated only where

“government has placed a substantial burden on the observation of

a central religious belief or practice,” Hernandez v. Commissioner,

490 U.S. 680, 699 (1989), by impeding “conduct mandated by

religious belief,” Thomas v. Review Board, 450 U.S. 707, 717-18

12

In short, any definitive ruling as to the constitutionality

of the funding program at issue in this case—and any

meaningful consideration of the constitutional status of

“school choice” programs generally—would have to ad-

dress questions arising not only under the Free Exercise

Clause, but also under the Free Speech, Equal Protection

and Establishment Clauses. This case presents none of

those crucial questions. As a result, review of the ruling

of the court below would be a purely academic exercise,

and resolution of the idiosyncratic Free Exercise question

presented here would not even resolve the constitutional

status of the program involved in this case, much less that

of other “school choice” programs.

II. THERE IS NO CONFLICT AMONG THE LOWER

COURTS WITH RESPECT TO THE QUESTION

PRESENTED

Petitioners assert that the decision of the Vermont

Supreme Court with respect to the Free Exercise issue

conflicts with the decisions in Peter v. Wedl, 155 F.3d

(1981). Because petitioners do not allege that their religion re-

quires that children attend a pervasively sectarian school, see supra

at 4, they cannot satisfy that threshold element of a Free Exercise

Claim. See Brusca v. Missouri, 332 F. Supp. 275, 279 (E.D. Mo.

1971) (state’s refusal to fund sectarian education does not violate

parents’ rights under the Free Exercise Clause where, inter alia,

“(plaintiffs make no contention that attendance at public schools

is contrary to the basic precepts or tenets of their religion”), aff'd,

405 U.S. 1050 (1972); Goodall v. Stafford County Day Sch. Bd.,

60 F.3d 168, 172-73 (4th Cir. 1995) (where state refuses to pay for

cued speech transliterator at a sectarian school, but would pay at

a nonsectarian school, there is no Free Exercise claim because,

inter alia, parents of the affected student “have neither been com-

pelled to engage in conduct proscribed by their religious beliefs,

nor have they been forced to abstain from any action which their

religion mandates that they take”), cert. denied, 516 U.S. 1046

(1996). It therefore is apparent that the Free Exercise claim

petitioners have advanced stands on a very different footing from

the Free Speech and Equal Protection claims that could have been

but were not asserted.

NE Beis to RA a ees

13

992 (8th Cir. 1998); Hartmann v. Stone, 68 F.3d 973

(6th Cir. 1995); and Columbia Union College v. Clarke,

159 F.3d 151 (4th Cir. 1998), cert. denied, 119 S. Ct.

2357 (1999). See Pet. at 9-14, 18. There is no such

conflict.

The conflict petitioners attempt to generate is based on

their characterization of this as “a case about discrimina-

tion [against religion].” Pet. at 9. But it is nothing of the

kind. Vermont has adopted a simple and evenhanded

policy: it offers a free secular education to all students,

whether they choose to attend sectarian or nonsectarian

schools, but refuses to pay for religious instruction and

other religious activity, “wherever [they] occur.” App.

53.° Consistent with that policy, the State will not pay

petitioners’ tuition because the school they have chosen

(but which their religion does not require them to attend,

see supra at 4) does not separate secular instruction

from religious instruction—or indeed, from religious wor-

ship—and therefore cannot comply with the limitation

“that public moneys . . . not be spent on religious observ-

ance, inculcation of religious values, or on religious edu-

cation.” See supra at 3.1°

In adopting this policy, Vermont has done nothing to

“prohibit the free exercise” of religion. There is a funda-

9 Nor, we hasten to add, does Vermont pay for students to be

instructed against religion: public schools are constitutionally pro-

hibited from proselytizing against religion, and there is no claim

that the private schools that receive tuition from the State have

been engaged in such activity.

10 It is for this reason, and not because of any preference of one

religion over another, see Pet. at 26-27, that the Vermont Constitu-

tion does not permit the payment of tuition to schools in which

secular instruction is not separate from religious instruction, while

leaving open the possibility of providing funds for secular instruc-

tion in sectarian schools that do make such a separation. See supra

at 7-8.

14

mental distinction between prohibiting free exercise, on

the one hand, and declining to subsidize religious activity,

on the other. The Free Exercise Clause “is written in

terms of what the government cannot do to the individual,

not in terms of what the individual can exact from the

government.” Lyng v. Northwest Indian Cemetery Pro-

tective Ass'n, 485 U.S. 439, 451 (1988) (quoting Sher-

bert v. Verner, 374 U.S. 398, 412 (1963) (Douglas, J.,

concurring) ). “The fact that government cannot exact

from [a citizen] a surrender of one iota of [his] religious

scruples does not, of course, mean that [he] can demand

of government a sum of money, the better to exercise

them.” Brusca v. Missouri, 332 F. Supp. 275, 279 (E.D.

Mo. 1971) (quoting Sherbert, 374 U.S. at 412 (Douglas,

J., concurring)), aff'd, 405 U.S. 1050 (1972). There con-

sequently is no “right of private or parochial schools to

share with public schools in state largesse, on an equal

basis or otherwise.” Norwood v. Harrison, 413 U.S. 455,

462 (1973).

There is no conflict among the lower courts as to how

this settled principle applies in the context of a Free

Exercise challenge to the exclusion of private sectarian

schools from programs that provide assistance to other

schools. The courts uniformly have rejected such chal-

lenges. Petitioners cite three of those decisions. See Pet.

at 18 (citing Bagley v. Raymond School Dept., 728 A.2d

127 (Me.), cert. denied, 68 U.S.L.W. 3247 (U.S. Oct.

12, 1999); Strout v. Albanese, 178 F.3d 57 (lst Cir.),

11 This Court has made a similar point in a series of cases holding

that the government’s refusal to subsidize speech or other protected

activities cannot be viewed as an infringement of constitutional

rights. See National Endowment for the Arts v. Finley, 118 S. Ct.

2168, 2179 (1998); id. at 2183-84 (Scalia, J., concurring); Rust v.

Sullivan, 500 U.S. 173, 198, 201 (1991); Regan v. Taxation with

Representation, 461 U.S. 540, 545-46, 549 (1983); Harris v.

McRae, 448 U.S. 297, 316-18 (1980); Maher v. Roe, 432 U.S. 464,

475 (1977); Buckley v. Valeo, 424 U.S. 1, 98 (1976).

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15

cert. denied, 68 U.S.L.W. 3129 (U.S. Oct. 12, 1999);

Witters v. Washington Comm'n for the Blind, 771 P.2d

1119 (Wash.), cert. denied, 493 U.S. 850 (1989)).

There are at least seven others, including two decisions

that were summarily affirmed by this Court. See Brusca,

supra; Luetkemeyer v. Kaufmann, 364 F. Supp. 376

(W.D. Mo. 1973), aff'd, 419 U.S. 888 (1974); Goodall

v. Stafford County Day Sch. Bd., 60 F.3d 168, 173 (4th

; Cir. 1995), cert. denied, 516 U.S. 1046 (1996); Jackson

v. California, 460 F.2d 282 (9th Cir. 1972); Nieuwenhuis

v. Delavan-Darien Sch. Dist. Bd. of Educ., 996 F. Supp.

, 855, 863 (E.D. Wis. 1998); Miller v. Benson, 878 F.

Supp. 1209 (E.D. Wis.), vacated as moot, 68 F.3d 163

(7th Cir. 1995); McCarthy v. Hornbeck, 590 F. Supp.

936, 946 (D. Md. 1984).

Petitioners are mistaken in asserting that the decisions

of the Eighth Circuit in Peter, the Sixth Circuit in Hart-

. mann, and the Fourth Circuit in Columbia Union College

are to the contrary. None of those cases holds that the

Free Exercise Clause requires the government to provide

funds to be used for religious activities.

Petitioners’ reliance on Columbia Union College is par-

ticularly quixotic. That decision holds—as this Court pre-

viously had held with respect to the same statutory pro-

gram in Roemer v. Board of Public Works, 426 U.S.

736 (1976)—that it is proper (indeed, necessary) that

Maryland’s program of grants to public colleges requires

prospective recipients to “demonstrate that no . . . funds

will be used for ‘sectarian purposes’ including ‘religious

instruction, religious worship, or other activities of a

religious nature.’” 159 F.3d at 154 (quoting the stat-

ute}. The Fourth Circuit further held, as this Court had

held in Roemer, that grants must be denied “to insti-

tutions that are so ‘pervasively sectarian’ that secular

16

activities cannot be separated from sectarian ones.” Id.

at 155 (quoting Roemer, 426 U.S. at 755). See id. at

159 (observing that nothing in later decisions “eviscerates

Roemer’s holding regarding direct money grants”). The

Fourth Circuit merely held that further proceedings were

necessary in order to determine whether Columbia Union

College was in fact a pervasively sectarian school. /d. at

164-69. Here, in contrast, it is undisputed that MSJ is

such a school. See supra at 2-3.14

Nor does Hartmann support petitioners’ position. The

Sixth Circuit emphasized in that case that the program

from which the plaintiffs had been excluded—which desig-

nated the entities authorized to provide care to children

of on-duty military personnel—was one that did not pro-

vide government funding or benefits to the care providers.

Finding that “the relationship between the Army and the

Provider . . . is solely one of regulator and regulatee,”

68 F.3d at 980, the court stated that “a more serious

and pressing concern” would arise if the program did

“not just regulate, [but] also provide[d] benefits to partici-

pants,” id. at 982.

In Peter, the Eighth Circuit, relying on cases that it

described as having upheld the use of government funds

for “secular teaching services at . . . private religious

school[s],” 155 F.3d at 955 (emphasis added),}* ruled

that it would not be permissible for the state to deny a

disabled child the necessary services of a paraprofessional

who would assist [him] with his disabilities, translate [ ]

12 The District conceded that point below. See Appellant’s Onen-

ing Brief at 21 n.32 (“As a pervasively sectarian institution, MSJ

is by definition incapable of segregating secular and religious

aspects of its program.”’).

13 See also id. at 996-97 (funds for teaching of “nonreligious sub-

jects’’).

PE CN SEPIA AN TT ee CRD NEC ERSTE

17

his finger spelling, and adapt [ ] classroom tasks for [him],”

id. at 994, merely because the child was attending a sec-

tarian school. It is clear from the Eighth Circuit’s analysis

that the court saw Peter as a case in which a student had

been denied government funds for services that could

fairly be characterized as secular. This is not such a case.

Thus, the holding of the Vermont Supreme Court is

consistent with an unbroken line of authority, and does

not warrant review.

Ill. THE DECISION BELOW DOES NOT CONFLICT

WITH ANY DECISION OF THIS COURT

Petitioners contend that the Vermont Court’s decision

conflicts with “the bedrock principle of this Court’s First

Amendment jurisp~udence that the government ‘may not

. impose special disabilities on the basis of religious

views or religious status.’” Pet. at 20 (quoting Employ-

ment Div. v. Smith, 494 U.S. 872, 877 (1990)). As we

already have explained, that principle never has been

understood to mandate government funding of religious

practices, which is what petitioners are seeking. There is

nothing to the contrary in the three cases upon which peti-

tioners place principal reliance: Rosenberger v. Rector

and Visitors of the University of Virginia, 515 U.S. 819

(1995), see Pet. at 22-24; Church of the Lukumi Babalu

Aye, Inc. v. City of Hialeah, 508 U.S. 520 (1993), see

Pet. at 24-25; and McDaniel v. Paty, 435 U.S. 618

(1978), see Pet. at 25-26.

What was at issue in Rosenberger was the government’s

obligation of neutrality in affording access to a “public

forum” created by the government “to encourage a diver-

sity of views from private speakers.” Rosenberger, 515

U.S. at 834. Where the government is not creating such

a forum, but rather is deciding how to conduct its own

18

business, either as “speaker,” id. at 833, as “transmitt[er]

of a message it favors,” id. at 834, or as “buyer” of serv-

ices used to “promote a particular government program,”

National Endowment for the Arts v. Finley, 118 S. Ct.

2168, 2190-91 (1998) (Souter, J., dissenting), such

“forum” principles are not implicated and the government

has every right to “make content-based choices,” Rosen-

berger, 515 U.S. at 833, including the right to “determine

the content of the education it provides,” id.

In addition to the fact that Rosenberger arose in the

very different context of a request for access to a public

forum, the case did not involve a demand for the use of

general public funds, but rather for participation in the

use of a special activities fund made up of payments from

students. The Court specifically stated that its “decision

. cannot be read as addressing an expenditure from a

general tax fund,” id. at 841, and Justice O’Connor em-

phasized that point in her concurrence, id. at 851-52.

Lukumi is, if anything, even less to the point here.

That case involved no issue of government funding; it was

one of the rare cases (see 508 U.S. at 523) in which a

statute outlawed a particular religious practice.

Nor did McDaniel involve a refusal to fund religious

activities. Rather, that case stands for the proposition

that the state cannot deny an individual a secular right or

benefit to which the individual otherwise would be en-

titled (in McDaniel, the right to run for public office)

because the individual has engaged in a religious practice

(in McDaniel, serving in the ministry). Here, in contrast,

petitioners seek a benefit that is mot secular: the tuition

payment they demand would fund religious education and

worship. See supra at 4, 7. That benefit is not provided,

and need not be provided, by the State to anyone.

19

In sum, there is no decision of this Court that supports

petitioners’ contention that the government must provide

funding for the religious instruction they wish to receive.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

MITCHELL L. PEARL ROBERT H. CHANIN *

LANGROCK SPERRY & WOOL JEREMIAH A. COLLINS

P.O. Drawer 351 JOHN M. WEST

Middlebury, VT 05753 BREDHOFF & KAISER, P.L.L.C.

(802) 388-6356 805 Fifteenth Street, N.W.

JOEL D. Cook ; Suite 1000

VERMONT-NEA Washington, D.C. 20005

10 Wheelock Street (202) 842-2600

Montpelier, VT 05602

(802) 223-6375 * Counsel of Record

APPENDIX

la

APPENDIX

RUTLAND NORTHEAST SUPERVISORY UNION

Brandon, Vermont 05733

FAX (802) 247-5540

March 16, 1999

Mr. Richard Komer

Institute for Justice

1717 Pennsylvania Ave., NW

Washington, DC 20006

Mr. Jack Facey

71 Allen Street

Rutland, VT

Gentlemen:

At its regularly scheduled board meeting of March 15,

1999, the Chittenden Town School District voted to warn

{sic] a revision to their high school tuition policy to pro-

hibit the payment of tuition to sectarian schools.

It is the view of the majority of the current board that

payment of tuition to religious schools supports sectarian

causes and is thus, an improper use of public funds.

The board has also directed me to notify you that any

authority you or any of you have had previously to speak

for, represent, or act on behalf of, the Chittenden School

Board of Chittenden School District, is hereby terminated.

In the event that any ministerial or substantive act re-

mains to be done on behalf of the Board in connection

with the pending appeal, no act should be taken without

express prior consent of the board.

At the same time, the Chittenden board recognizes that

there are contending views on the issues that are now

2a

before the Vermont Supreme Court. The board is aware

that all necessary documents have been filed and we are

awaiting the decision of the court. By the above actions,

the board does not wish to disturb the court’s delibera-

tions. We think it in the interests of all to have a clear

and unambiguous decision from the supreme court regard-

ing public payments to religious schools.

The board wishes to thank you for all your efforts.

Sincerely,

/s/ William J. Mathis

WILLIAM J. MATHIS, Ph.D.

Superintendent of Schools