The long-awaited Supreme Court ruling on Espinoza v. Montana Department of Revenue is in and it is a major victory for school choice advocates across the country.
The ruling reinstates a tax-credit funded scholarship program in Montana and makes it very clear that states cannot limit funding of school choice programs simply because those programs may support religious schools.
We will have to wait to see what impact the ruling has on school choice programs across the country in the next couple of years, but it seems clear that the ruling will make it easier for states like Missouri to give families the educational choices they have been demanding for decades.
While the majority ruling stopped short of completely dissolving state Blaine Amendments across the country, it enshrined the constitutionality of tax-credit funded school choice programs like the Empowerment Scholarship Accounts that have been proposed in Missouri.
In the majority opinion, Chief Justice John Roberts wrote that, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
The court relied heavily on the 2017 Trinity Lutheran Church v. Comer decision which required Missouri to provide funding for playgrounds to religiously affiliated schools.
“We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs,” wrote Roberts, adding that in the Espinoza case providing funding directly to parents further negated any Blaine Amendment concerns. “Here too Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. 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. The Montana Constitution discriminates based on religious status just like the Missouri policy in Trinity Lutheran.”
Roberts was very clear that Blaine Amendments, referred to as “no-aid provisions” in the ruling, have a history of bigotry and do not promote religious freedom.
“Drawing on ‘enduring American tradition,’ we have long recognized the rights of parents to direct ‘the religious upbringing’ of their children,” writes Roberts. “Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”
While agreeing with the ruling in whole, Justices Samuel Alito and Neil Gorsuch provided additional opinions that could be used in future decisions related to school choice and religious freedom.
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their purpose was to prevent the government from funding Catholic schools. Today, opponents of educational choice employ Blaine Amendments—found in 37 state constitutions—as blunt weapons with which they attempt to block modern educational choice programs.
Missouri has two sections in its constitution that impact aid to religious institutions:
“That no money shall ever be taken from the public treasury, directly or indirectly,
in aid of any church, sect or denomination of religion, or in aid of any priest,
preacher, minister or teacher thereof, as such; and that no preference shall be given
to nor any discrimination made against any church, sect or creed of religion, or
any form of religious faith or worship.” Missouri Const. Art. I, § 7.
“Neither the general assembly, nor any county, city, town, township, school
district or other municipal corporation, shall ever make an appropriation or pay
from any public fund whatever, anything in aid of any religious creed, church or
sectarian purpose, or to help to support or sustain any private or public school,
academy, seminary, college, university, or other institution of learning controlled
by any religious creed, church or sectarian denomination whatever; nor shall any
grant or donation of personal property or real estate ever be made by the state,
or any county, city, town, or other municipal corporation, for any religious creed,
church, or sectarian purpose whatever.” Missouri Const. Art. IX, § 8.
Justice Alito provided a detailed history of the Blaine Amendment, highlighting how it was used to persecute Catholics and its connections to the Know-Nothing Party and the Ku Klux Klan.
He argues that the amendments, found in 37 state constitutions, are based on a movement of hate that cannot be ignored, even if states re-ratified the amendments at a later time when there was less anti-Catholic sentiment involved.
“The resulting wave of state laws withholding public aid from’sectarian’ schools cannot be understood outside this context,” he writes, adding that arguments against school choice programs that are based on a desire to persevere funding for the public school system are equally problematic.
Justice Alito argues that the public school system is rooted in the efforts of Horace Mann to start “common schools,” many of which used curriculum that was based on Protestant teachings and thus offensive to Catholic or Jewish families.
“Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home,” writes Alito. “Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. 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 program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice.”
Justice Gorsuch takes a different approach, arguing that in future cases the Supreme Court should fully recognize the constitutional right to fully exercise religious freedom through school choice.
“This Court has already recognized that parents’ decisions about the education of their children—the very conduct at issue here—can constitute protected religious activity,” he wrote, condemning Montana’s state Supreme Court for its earlier ruling on the case. “Effectively, the court told the state legislature and parents of Montana like Ms. Espinoza: You can have school choice, but if anyone dares to choose to send a child to an accredited religious school, the program will be shuttered. That condition on a public benefit discriminates against the free exercise of religion. Calling it discrimination on the basis of religious status or religious activity makes no difference: It is unconstitutional all the same.”