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In 5-4 Espinoza Ruling, Supreme Court Allows Public Funding for Religious Schools

By Kevin Mahnken | June 30, 2020

Kendra Espinoza and her daughters. The Supreme Court ruled Tuesday that Montana could not exclude Espinoza from using the state’s tax-credit scholarship program to cover tuition at her children’s religious school, Stillwater Christian School in Kalispell, Montana. (Institute for Justice/Facebook)

The Supreme Court released a ruling on Tuesday that could hold massive implications for school choice and religious education. In the case of Espinoza v. Montana Department of Revenue, a 5-4 conservative majority found that states could not exclude religious institutions from participating in programs that subsidize private school tuition.

The opinion, authored by Chief Justice John Roberts, was hailed by religious liberties groups as a landmark victory, even as the 3 million-member National Education Association decried it as “a far-right effort” to undermine public education. For his own part, Roberts said that the principle underlying the decision was simple: Religious schools are no different from secular schools when it comes to receiving public benefits.

“A State need not subsidize private education,” he wrote. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The question of Montana’s school choice program, which has proceeded from the state’s tax office to federal courtrooms over the past five years, touched on deep constitutional arguments over whether public funding can be directed toward religious ends.

In 2015, the Montana state legislature created a tax-credit scholarship program for private schools. The aim was to provide a dollar-for-dollar match, up to $150, to individuals and businesses that contributed to organizations financing private school scholarships.

But the Montana Department of Revenue soon issued a ruling that prohibited the use of tax-funded scholarships at religious institutions, which make up roughly two-thirds of all private schools in the state. The decree was in keeping with the state’s constitutional ban on allocating tax dollars for religious purposes. Such statutes, colloquially referred to as “Blaine amendments,” are in effect in most states, and they are often the main impediments to the creation of voucher-type programs subsidizing private school tuition.

A group of parents first sued in state court, where an early verdict in their favor was overturned by the Montana Supreme Court in late 2018. Arguing that religious education functions as “a rock on which the whole church rests,” the judges ruled that the state conferring a benefit on parochial schools would be tantamount to giving it to a church itself, in violation of the state constitution.

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By that time, the U.S. Supreme Court had produced an important precedent. In the 2017 case of Trinity Lutheran Church of Columbia Inc. v. Comer, the majority ruled that schools could not be excluded from some public provisions purely because they were administered by churches. The specificity of the ruling — focusing on a Missouri grant program to subsidize the repaving of playground surfaces — made it unclear whether it was the lifeline that voucher proponents had long sought.

When the court heard the Espinoza arguments in January, Deputy Solicitor General Jeffrey Wall leaned heavily on the 7-2 Trinity Lutheran judgment. But Justice Elena Kagan, who had ruled with the majority in the earlier case, countered that the public benefit of a safer playground for toddlers at stake in that instance was by nature secular.

Several justices — including Roberts, who was thought to be the swing vote in the case — also raised questions about legal standing; since the schools were being denied the benefit of the scholarship money, rather than the parents, it should be the schools themselves suing the state, the judges reasoned.

Those concerns were not directly addressed in Roberts’s opinion, which focused instead on the question of whether churches and parochial schools could legally be kept from participating in programs that offered assistance to non-religious institutions. Observing that the Trinity Lutheran case had “distilled” the existing jurisprudence around religious organizations’ eligibility to receive public benefits, Roberts found that the Montana Constitution “discriminates based on religious status just like the Missouri policy” in the earlier case.

“Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” he wrote. “The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”

Roberts’s opinion was joined by fellow conservative justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh and Clarence Thomas. Additionally, Alito, Gorsuch and Thomas issued their own concurring opinions. In his concurrence, Alito detailed the long history of Blaine amendments, most of which were originally added to state constitutions in the late 19th century as a means of suppressing Catholic education. In an unusual flourish, he included an 1871 cartoon from Harper’s Weekly that depicted Catholic priests as crocodiles menacing young schoolchildren.

Although Montana revised its original no-aid provision in 1972, Alito noted that its language retains “disquieting remnants” of the era’s bigotry.

“Many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home,” he wrote. “The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there.”

The court’s four liberal justices differed forcefully, countering that the majority was advancing a novel and misguided doctrine of religious freedom. Justice Ruth Bader Ginsburg argued that the Montana Supreme Court passed the test of nondiscrimination by invalidating the program for religious and secular schools alike — effectively putting “all private school parents in the same boat.” In a separate dissent, Justice Sonia Sotomayor agreed that Montana’s decision to disallow the tax credits entirely “[foreclosed] the as-applied challenge petitioners raise here.”

“Today’s ruling is perverse,” she concluded. “Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”

Kendra Espinoza, the case’s lead plaintiff, was ebullient in a publicly released statement.

“I am thrilled that the courts ruled in favor of the Constitution and maintained a parent’s right to choose where their children go to school,” she said. “For so many other families across America, this will potentially mean changing lives and positively altering the future of thousands of children nationwide. What a wonderful victory.”

Still unknown is how the ruling could impact other states’ efforts to subsidize private school choice. Those initiatives take various forms: 16 states, along with Puerto Rico and Washington, D.C., have enacted private school voucher programs, while another 18 offer tax-credit scholarships, according to the advocacy group EdChoice.

In Nevada, where a tax-credit program similar to Montana’s has remained in limbo since its passage in 2015, the state legislature froze the program’s growth in recent budget negotiations. That action triggered a lawsuit from the libertarian Institute for Justice, which represented Espinoza.

The group celebrated the outcome on Tuesday morning, calling the court’s decision “a landmark victory for parents.”

Education Secretary Betsy DeVos, who vigorously backed the Espinoza plaintiffs and personally attended oral arguments for the case in January, sounded a triumphant note in a press release.

“This decision represents a turning point in the sad and static history of American education, and it will spark a new beginning of education that focuses first on students and their needs,” the statement read. “I’m calling on all states to now seize the extraordinary opportunity to expand all education options at all schools to every single student in America.”

A supporter of private and religious education since her days as an activist in Michigan, DeVos is currently pushing districts to share billions in coronavirus relief with private schools, many of which are facing permanent closure because of COVID-related shutdowns. Critics have assailed that effort as a scheme to use emergency assistance as a shelter for elite institutions even as public schools face devastating budgetary crunches.

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Liberal organizations were equally vocal in their grief. Many progressives were buoyed by the court’s decisions this session, which included striking down a restrictive anti-abortion law in Louisiana, supporting protections for undocumented immigrants brought to the U.S. as children, and issuing a ban against employment discrimination on the grounds of sexual orientation or gender identity. The Interfaith Alliance, a group that works to preserve the separation of church and state, warned in a statement that the Espinoza ruling “will further starve our public school systems while inflicting lasting damage to the wall of separation between religion and government.”

An even more ominous message was delivered by GLSEN, an LGBTQ advocacy network promoting inclusion and acceptance in K-12 schools. The group lamented that the court had made it easier for public dollars to flow to religious schools, some of which fervently oppose homosexuality as immoral.

“If we are ever to achieve liberation for LGBTQ people and undo the legacy of racism and slavery in this country, we must block these efforts and ensure we are using our taxpayer dollars to make our nation’s schools safe and enriching for all students, not starving our public schools of essential funds and sustaining anti-LGBTQ school environments that put our young people at risk,” the group wrote.

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