Washington, D.C.— Imagine if the State of Vermont constructed a platform in a public square and invited all Vermonters to come up and speak on any issue of public importance-except those who wish to speak in terms of their deeply held religious principles. Such an action would be blatantly discriminatory, yet it exactly parallels what is happening right now in Vermont's tuitioning towns.

For more than a century, Vermont has operated a "tuitioning" system that enables children in communities that don't wish to maintain a public high school or middle school to receive tuition for private or public schools of their parents' choice. This sensible solution has worked well, giving many Vermonters more freedom to direct their children's education than parents in most other states-Vermonters, that is, who don't choose religious schools for their children.

Since 1961, parents in tuitioning towns have been barred from choosing religious schools through the program. For over 90 years before that, parents could-and routinely did-choose to tuition their children to religious schools. Now, parents may choose any public school or any private secular school, even an out-of-state school, but they may not select a religious school. Vermont's policy discriminates against religious families and is simply unfair-and plainly unconstitutional.

The current discriminatory policy stems from a 1999 decision by the Vermont Supreme Court, but its history is a complex tale of changing constitutional interpretations, resulting in the state's highest court twice reversing itself.

When the Vermont Supreme Court originally looked at the issue in 1961, it held that the federal Constitution prevented parents from using the program to select religious schools. (Importantly, however, the court noted that Vermont's own constitution-which has language that is different than the federal Constitution-would not bar tuitioning to religious schools.) But in 1994, the state Supreme Court reversed that decision, upholding the rights of parents to send their children to religious schools as part of a "neutral" school choice program-meaning a program that neither favors nor disfavors religion. Just last year, the U.S. Supreme Court agreed when it upheld Cleveland's voucher program.

And yet, even after the 1994 decision, the Vermont Department of Education persisted in excluding these parents. In 1997, this policy of religious discrimination was again challenged, this time by the Chittenden school board--represented by the Washington, D.C.-based Institute for Justice, the non-profit law firm where I work. Chittenden wished to provide tuitioning funds to its residents who send their children to religious schools. In this case, the State came up with another defense; it contended that the Vermont Constitution would not allow the state to treat religion on a neutral basis-arguing, in effect, that its own state Constitution requires discrimination against religion.

This argument was not grounded in Vermont precedent. Indeed, the Vermont Supreme Court had repeatedly held-including in its 1961 decision-that the state Constitution was not as restrictive as the federal Constitution's Establishment Clause. Shockingly, in 1999 the Vermont Supreme Court reversed itself and ruled that the Vermont Constitution does not permit parents to use the program to send their children to religious schools.

What the Vermont Supreme Court did not properly consider was the supreme importance of state neutrality towards religion, enshrined in the U.S. Constitution's two religion clauses, the Establishment Clause and the Free Exercise Clause. One clause cannot be read without the other. Together they mandate state neutrality-not hostility-toward religion, and together they warn that to restrict parents' options is to trample federally guaranteed rights to the free exercise of religious beliefs.

The State's policy does not represent an ideal of Church and State relations. Rather it is akin to telling Vermonters that religious people, regardless of their particular faith, need not apply. Three such Vermont families-parents who have been refused tuitioning funds to send their children to religious schools-are fighting back, filing a lawsuit today (March 20, 2003) to overturn the policy. Represented by the Institute for Justice, these citizens will ask the federal courts to vindicate their rights. It is time for the religious discrimination to end and for equal educational opportunities to flourish.

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Robert Freedman is an attorney with the Institute for Justice, the nation's leading legal advocate for school choice. For more information, visit www.ij.org.