The Supreme Court dealt a victory to private school choice advocates on Tuesday in its ruling on a landmark case that could open the floodgates for allowing public dollars to fund religious institutions.
The case, Espinoza v. Montana Department of Revenue, centered around a school tax credit program in Montana that provided financial incentives for individuals and corporations to donate to private school tuition scholarships. Most of the schools that signed up to participate were religious.
In 2018, the Montana Supreme Court found this in violation of a state constitutional provision barring public dollars for religious schools. The state disbanded the entire program in response, a decision that affected both the religious and secular schools in the program.
In a 5-4 ruling that will likely reverberate around the nation, the Supreme Court has reversed the state court’s decision.
The plaintiffs and their supporters argued that the state had discriminated against religious institutions, and the majority of Supreme Court justices agreed, determining that the Montana court’s decision specifically singled out religious schools due to their religiosity, in violation of the Constitution.
“When otherwise eligible recipients are disqualified from a public benefit ‘solely because of their religious character,’ we must apply strict scrutiny,” Chief Justice Roberts wrote in the majority opinion.
“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.”
Justice Ruth Bader Ginsburg, who wrote one of the case’s dissenting opinions, argued that the state did not discriminate in its treatment of religious schools because it disbanded the entire program, rather than single out religious participants.
“Neither giving up their faith, nor declining to send their children to sectarian schools, would affect their entitlement to scholarship funding. There simply are no scholarship funds to be had,” she wrote.
Also dissenting, Justice Sonia Sotomayor called the decision “perverse,” by appearing “to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”
At the center of the case is an issue that President Donald Trump and his appointees have long championed: private school choice, which includes voucher and tax-credit programs. Private school choice programs, which exist in 29 states and the District of Columbia, typically provide publicly funded scholarships for children from lower-income families to attend private schools. A 2017 HuffPost investigation found that over 75% of schools that participate in these programs are religious and overwhelmingly Christian.
In some places, these programs push up against constitutional provisions called the Blaine Amendments, which bar public funding from going to religious entities. The Blaine Amendments were born out of anti-Catholic hostility, though in Montana, the state reaffirmed its commitment to the provision in the 1970s for reasons unrelated to anti-Catholic sentiment.
The Supreme Court did not rule on the constitutionality of such provisions overall, but rather whether such provisions can be used to exclude religious schools from state voucher or tax credit programs.
Still, Espinoza v. Montana Department of Revenue acts as a larger referendum on private school choice, which U.S. Secretary of Education Betsy DeVos has tried vigorously to expand. Indeed, DeVos has spoken out against the Blaine Amendments in the context of school choice, saying in a previous statement to The New York Times that they “only serve to keep too many children away from a better education.”
The outcome of this case constitutes a major victory for DeVos, who has staked her entire career in education on this issue.
DeVos immediately applauded the decision in a statement, calling it “a turning point in the sad and static history of American education.” She encouraged states to seize the opportunity to expand school choice options for their students.
“Montana and other states should be very clear about this historic decision: your bigoted Blaine Amendments and other restrictions like them are unconstitutional, dead, and buried,” she said.
Notably, the Espinoza decision did not rule on the constitutionality of Blaine amendments overall.
Under the Trump administration, the Supreme Court has already worked to unravel some of the firewalls between church and state. In a 2017 case, Trinity Lutheran Church v. Comer, the Supreme Court said that Missouri could not prohibit a church from participating in a state-funded program designed to fix up playgrounds simply because it was religious.
Both public school choice and church-state separation advocates rang the alarm on the potential impact of this case. Public school choice advocates have long stood against voucher and tax credit programs, which they say serve to drain funds from public schools. When students leave public schools to attend private schools through these programs, per-pupil funding follows them. However, the onerous costs of maintaining a school system remain.
Critics said they feared the court’s ruling could open the gate for a legion of litigation against the Blaine Amendments across the country, opening a Pandora’s box that could unravel long-held protections. They also said they feared the case would expand public funding for schools that openly discriminate.
“The Supreme Court has opened the door for voucher proponents in states to aggressively pursue the diversion of taxpayer dollars to private schools — schools that can pick and choose who they educate and are not accountable to taxpayers,” said a statement from the National Coalition for Public Education, a coalition of groups united against voucher programs.
Indeed, school choice advocates are already cheering the impact the decision could have around the country.
“Espinoza will strike a death blow to discriminatory Blaine amendments found in more than 30 state constitutions, which may restrict participation of religiously affiliated schools in publicly funded educational choice programs,” said a statement from EdChoice Vice President of Legal Affairs Leslie Hiner. “Once an obstacle to parents and state legislators who value the right of parents to choose any school for their children’s education, today the Blaine obstacle has suffered defeat!”
The 2017 HuffPost investigation found that at least 14% of religious schools participating in voucher or tax credit programs maintain policies that advertise anti-gay policies or bar LGBTQ students and staff from admission and employment. A more recent HuffPost investigation found that some of these schools go so far as to push LGBTQ children to attend conversion therapy.
HuffPost found that of the 13 schools that originally signed up to participate in the Montana tax credit program, four had anti-LGBTQ policies on the books, including the school at the center of the case. The case was initiated by Kendra Espinoza, a mother who wanted to use the program to help pay for her daughters to attend a local Christian school.
“It’s very concerning to divert public funds to private religious schools. We all know our public schools are already hurting across the country,” Rachel Laser, executive director of Americans United for Separation of Church and State, told HuffPost in January.
Private school choice advocates, however, say that these programs provide the opportunity for lower-income children to attend the school that best works for them, rather than only the school in their area — an option that more affluent students who attend private schools have always had, they point out. Lately, the Trump administration has been pushing school choice as a matter of civil rights. In June, Trump called school choice the biggest civil rights issue of “all time in this country.”