Despite Espinoza decision’s ‘seismic shock’ to public schools, context may vary by state

The U.S. Supreme Court ruled 5-4 Tuesday in favor of a Montana mother who wanted to use the state’s tax credit-funded scholarship to send her children to a Christian school, handing a major victory to school choice advocates and President Donald Trump. Trump two weeks ago called school choice “the civil rights statement of the year, of the decade, and probably beyond.”

The decision removes “the largest state constitutional obstacle to educational choice” and expands “educational options for thousands of parents throughout the country,” said Scott Bullock, president and general counsel of the Institute for Justice, which represented the plaintiffs in Espinoza v. Montana Department of Revenue

And Tim Keller, a senior attorney with the Institute for Justice, said “in these uncertain times, policymakers are now free to enact school choice programs” that include religious options. 

Chief Justice John Roberts wrote for the majority that no “‘historic and substantial’ tradition supports Montana’s decision to disqualify religious schools from government aid.”

In the case, lead plaintiff Kendra Espinoza, alongside two other families, argued the state took a hostile, rather than neutral, stand toward religion when it invalidated the scholarship program — as opposed to letting the funds be used at a religious school. The state’s action, according to the plaintiffs, violated the free exercise, equal protection and establishment clauses of the First Amendment. 

Espinoza called the opinion “a big victory for our family” and said she and her daughters “danced around the kitchen together” when they heard the news this morning.

But those focused on protecting public schools blasted the opinion, which comes not only as states are facing large shortfalls because of declining tax revenues, but also as U.S. Secretary of Education Betsy DeVos has been insisting states share federal COVID-19 relief funds with private schools. 

Randi Weingarten, president of the American Federation of Teachers, called the decision “a seismic shock that threatens both public education and religious liberty.”

“Never in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education,” she said in a statement. “It will hurt both the 90% of students who attend neighborhood public schools, by siphoning off needed funds, and, in the long term, those who attend religious schools by curtailing their freedom with the accountability that comes with tax dollars.”

The issue of ‘baby Blaine Amendments’

Roberts was joined in the majority opinion by Justices Clarence Thomas, Samuel A. Alito, Neil M. Gorsuch and Brett M. Kavanaugh. Justice Ruth Bader Ginsburg wrote a dissenting opinion, in which she reiterated the point she made during January’s oral arguments that when the state invalidated the program, it essentially “put all private school parents in the same boat.” And Justice Sonia Sotomayor went further, calling the ruling “perverse.”

“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,” she wrote.

On trial, essentially, were states’ so-called “baby Blaine Amendments,” which date back more than a century and have been described by the Institute for Justice as “rooted in 19th century anti-Catholic bigotry.” Montana is one of 37 states that has such an amendment — or “no aid” statute — though interpretations of them vary at the state level. 

The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful. 

One immediate implication of this opinion will be felt in Maine, where the Institute for Justice is also representing three families in federal court who are challenging the state’s “town tuitioning” law. The law applies to families living in towns without a school that can serve their children, such as a high school, and allows them to receive vouchers to attend private schools. The towns pay the tuition directly to schools accepting the students. In 1981, Maine legislature banned religious schools from participating in the program.

Keller said he also expects to file a challenge in Vermont, the other state with a school choice program that doesn’t allow parents to use tuition benefits at religious schools.

Case background

In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision. 

The history of the case began in 2015, when the Montana Legislature passed the dollar-for-dollar tax credit program for those who donate to organizations providing scholarships for students to attend private schools — the same type of tax credit scholarship program DeVos has been trying to advance at the federal level.

An organization, Big Sky Scholarships, collected donations for the scholarships and began distributing them to private schools, most of which were faith-based, like Stillwater Christian School, where Espinoza’s children still attend. 

The Montana Department of Revenue, however, issued a rule stating families could not use the scholarships at religious schools. Montana officials viewed the matter as a simple separation of church and state issue. And Raph Graybill, chief legal counsel for Gov. Steve Bullock, and a candidate for state attorney general, has said the state’s “no-aid” statute is in place to protect religious liberty as well as the public schools.

The families sued and were successful in a trial court. But the Department of Revenue appealed the decision to the Montana Supreme Court, which agreed the scholarship program violated the state’s constitution. 

January’s hearing

During oral arguments in January, Justices Ginsburg, Kagan and Sotomayor all questioned whether the plaintiffs even had “standing” in this case — first, because the program was invalidated, and second, because they are not the taxpayers making the donations nor the schools receiving the scholarships. They added that because no one will receive the scholarship funds, no one is being discriminated against.

The court’s 2017 ruling in Trinity Lutheran Church of Columbia Inc. v. Comer also came up during the hearing. In that decision, the court ruled 7-2 that the church’s First Amendment rights were violated when the Missouri Department of Natural Resources denied it a grant to resurface a playground. 

Justices Samuel Alito and Brett Kavanaugh seemed to agree with Institute for Justice attorney Richard Komer, representing Espinoza, that the plaintiffs’ case was based on the same issues as in the Trinity Lutheran case. But Kagan drew a distinction between the secular benefit involved in the Trinity Lutheran case and the state subsidizing a religious education.  

In Tuesday’s opinion, however, Roberts wrote, “the prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on ‘enduring American tradition,’ we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children.” 

Next steps for states

The court’s opinion doesn’t “require states to enact educational choice programs, but it will empower legislators to do so,” explained Keller. States’ responses, he said, will depend on how broadly they already interpret their Blaine Amendments.

For example, in 13 states — those with the broadest interpretations — lawmakers would be “free to enact educational choice programs that permit families to choose both religious and nonreligious educational options,” Keller said. These states include California, Washington, Florida and Virginia.

In another six states, the interpretation of the law is more mixed. New Hampshire, for example, has a tax credit scholarship program that includes religious schools. The state also plans to direct some of the federal relief funds it has received toward the program. 

“As required by the federal Constitution, the program is neutral with regard to religion and operates based on private choice,” Keller said. “This means that parents who receive scholarships can choose either a religious or nonreligious school for their children.” 

But he added the context in each state is different. The opinion in favor of Espinoza may still “not clear the path for educational choice programs” in Michigan, for example.

That state’s constitution reads, “No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, pre-elementary, elementary or secondary school.” 

In her response, DeVos said she would call “on all states to now seize the extraordinary opportunity to expand all education options at all schools to every single student in America.”

Bullock said he still expects challenges at the state level, and Weingarten stressed that public school advocates “are not going to give up. In fact, we are only going to fight harder. Parents, teachers and their unions stood up and fought back — and we will continue to do so each and every day, whether in court, in Congress, in state legislatures or at the ballot box.”

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