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Briefs in Key School Choice Case Present Dueling Religious Freedom Arguments Ahead of January Supreme Court Hearing

By Carolyn Phenicie | November 19, 2019

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For the second time in three years, the Supreme Court will grapple with two seemingly contradictory aspects of the U.S. Constitution’s guarantees on religion and how they apply to education.

At issue, once again, are the dueling ideas that government may not establish a religion but also cannot prohibit its free exercise. On one side of this case, Espinoza v. Montana Department of Revenue, are parents who benefited from a Montana tax-credit scholarship program that helped pay tuition for their children to attend Christian schools. They’re opposed by the state department of revenue, which invalidated the program based on a provision in the state constitution banning state aid to religious education.

The Montana Supreme Court in December not only upheld the state revenue department’s decision to ban the use of tax-credit scholarships at religious schools, but invalidated the program entirely. It’s one of 38 states that has a Blaine Amendment, or “no-aid provision” language, in its state constitution blocking public support of parochial schools, which opponents say dates from an era of anti-Catholic bias.

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Oral arguments will be held Jan. 22. The U.S. government, which has filed a brief siding with the parents, has also asked to participate in oral arguments. Contentious decisions, as this one is likely to be, are usually issued close to the end of the court’s term in late June.

The U.S. Supreme Court will have to decide whether overturning the program amounts to illegally discriminating against religion.

The Montana decision “discriminates against the religious beliefs, conduct and status of religious families who choose a school because it shares their faith,” attorneys for lead petitioner Kendra Espinoza wrote in their brief. “It also discriminates against the religious status of the schools themselves, which directly harms every family that has decided these schools are the best fit for their child — whether for religious or secular reasons.”

Discriminating against religious schools contravenes the court’s 2017 Trinity Lutheran decision, attorneys for the parents wrote.

In that case, the high court ruled that a church-affiliated preschool in Missouri could not be barred from taking part in a playground safety program because of its religious affiliation. Five of the justices in the seven-member majority signed on to a footnote indicating that the ruling applied only to the playground dispute at hand, but many predicted the decision would open the way for more litigation on school choice.

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Montana, meanwhile, argued in a brief that the state’s situation departs from the one depicted in Trinity Lutheran. That case involved banning the church from participation in a widely available, secular program, solely because of its religious affiliation. In this case, the state has barred funding for a religious practice, the state said in the brief. Also unlike the Trinity Lutheran case, there is no public benefit that the schools would be eligible for if they weren’t religious — the state supreme court ended the program for all private schools, religious and secular, the brief said.

Maintaining the tax credit actually forced citizens into a situation like the one Trinity Lutheran was in, the state argued, offering the example of a Jewish resident who doesn’t want to subsidize Christian education.

“He can either violate his religion and get the tax credit, or give the same $150 directly to an organization consistent with his religious beliefs and not get the tax credit,” attorneys for Montana wrote.

The state relied on its own Supreme Court church-state education case to back its argument, the 2004 Locke v. Davey decision. There, the court ruled that Washington state could bar a recipient of a college scholarship program from using those public dollars to study devotional theology.

Friend-of-the-court briefs have also poured in. Beyond specific points of First Amendment law, many also touch on arguments that have long surrounded school choice and education reform.

Espinoza counts groups of lawmakers, primarily Republicans, several states and the U.S. government on her side.

In his request to participate in oral arguments, Solicitor General Noel Francisco said the federal government has a “substantial interest” in preserving the free exercise of religion, and Congress has enacted restrictions on the use of funds in religious activities. The government, he said, is “well positioned to address the reconciliation of religious-funding restrictions with the freedom of religion protected by the First Amendment.”

Plenty of religious and school-choice groups filed briefs as well.

EdChoice and other groups argued that conflicting federal and state court decisions have made states hesitant to offer new choice programs that will almost certainly face legal challenges.

The narrow Trinity Lutheran ruling “did not address the student-aid question and therefore did not lift the cloud of uncertainty over the otherwise-robust policy debates,” the group wrote. “Elected and appointed officials must now continue to thread a moving needle, as different courts interpret and apply this court’s prevailing First Amendment case law differently.”

Former Wisconsin governor Scott Walker filed a brief, authored by attorneys from the Wisconsin Institute for Law & Liberty, arguing that Milwaukee’s well-known voucher program makes a real difference for students. His brief also disputed critics who say that private choice programs aren’t accountable for performance or don’t serve students with disabilities, arguing that programs like Milwaukee’s could help other states.

Several school choice groups referenced the court’s 2002 Zelman v. Simmons-Harris decision. In that case, justices ruled that an Ohio voucher program did not violate the establishment clause because it relied on individual choices, and the program was part of the state’s broader effort to provide education.

Meanwhile, on Montana’s side were the state of Maine (which is fighting it own case regarding religion and school choice), church-state separation groupsdisability rights advocates, the National School Boards Association and teachers unions.

The brief from the school boards association, joined by the national PTA and groups representing principals and superintendents, argued that although the Supreme Court has in some instances found it permissible to fund religious institutions, at no time has the court required it.

“To hold as much now would be to open the door to programs that harm public education, by drawing public funding and support away from local public schools,” the groups said. “This Court should not disregard its long and sustained recognition of the crucial role of public education in preparing students for participation in our democracy, and states’ flexibility to manage that important mission with their own policy choices.”

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