Law & Courts

High Court Leans Toward Support for Religious Schools

By Mark Walsh — February 11, 2020 6 min read
Protesters from eight local schools attend a demonstration organized by the Institute for Justice at the U.S. Supreme Court in Washington during oral arguments in a case over tax-credit scholarships.
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The U.S. Supreme Court heard an intense hour of arguments last month in one of the most significant K-12 education cases in years, with conservative justices suggesting they were inclined to rule for parents who seek to reinstate a Montana tax credit funding scholarships for use at religious schools.

“Why isn’t this excluding religious people, telling them that they’re not entitled to equal treatment under the Constitution?—Why isn’t that a straight violation of the Trinity Lutheran principle?” said Justice Brett M. Kavanaugh in hearing the arguments Jan. 29 on Espinoza v. Montana Department of Revenue (Case No. 18-1195).

Kavanaugh referred to a 2017 decision, Trinity Lutheran Church of Columbia v. Comer, before he joined the court. The court ruled 7-2 in that case that Missouri had violated the U.S. Constitution’s guarantee of free exercise of religion when it denied a church participation in a state program to improve the safety of playgrounds.

Chief Justice John G. Roberts Jr.—present and chipper despite his marathon session the day before presiding over the impeachment trial of President Donald Trump in the U.S. Senate—also voiced support for the view that any discrimination on the basis of religion would violate the First Amendment.

Justice Samuel A. Alito Jr. suggested that states “don’t have to fund private education at all, but if they choose to provide scholarships that are available to students who attend private schools, they can’t discriminate against parents who want to send their children to schools that are affiliated in some way with a church.”

Justice Neil M. Gorsuch also suggested support for the parents’ side, while Justice Clarence Thomas, who did not speak per his custom, has long been of the view that state constitutional amendments barring aid to religion are suspect under the U.S. Constitution.

A Valid Question?

But several liberal members of the court questioned whether there was still a valid case because the entire Montana tax credit program had been struck down by the state supreme court, so no scholarships were flowing to religious or secular private schools.

“There is no discrimination going on at this point, is there?” Justice Elena Kagan said. “Whether you go to a religious school or you go to a secular private school, you’re in the same boat at this point.”

Richard D. Komer of the Institute for Justice, the Arlington, Va.-based group representing the private school parents seeking to use the scholarships, said the parents “brought this lawsuit because they were denied scholarships based on religion, and they are still being denied scholarships based on religion” after the lower-court ruling.

“If the court had shut down the program because it included Muslim schools or African-American schools, there’s no question that would be unconstitutional,” Komer said.

Adam G. Unikowsky, a Washington lawyer representing the state, told the justices that the U.S. Constitution “does not bar the state of Montana from enacting and applying a state constitutional provision that keeps its own state legislature out of the business of funding of religious schools.”

“The no-aid clause does not prohibit anyone’s free exercise of religion,” Unikowsky said. “To the contrary, it protects religious freedom by protecting religious schools from government influence and ensuring that government cannot use aid as leverage to influence the content of religious education.”

Among those in the courtroom was U.S. Secretary of Education Betsy DeVos, who has long been a proponent of various forms of private school choice. The Trump administration joined the arguments on the side of the religious school parents.

When the court said in Trinity Lutheran that “you can’t deny a generally available public benefit to an entity that’s otherwise qualified based solely on its religious character or nature, that rule applies equally to schools as to playgrounds,” said Jeffrey B. Wall, the principal deputy U.S. solicitor general.

Modest State Tax Credit

The Montana case involves a $150 state tax credit for contributions to funds that provide scholarships for students to attend private schools, including religious schools.

The state revenue department, which administers the tax credit, issued an administrative rule that barred the scholarships from being used at religious schools. It cited a state constitutional provision that says the state “shall not make any direct or indirect appropriation or payment from any public fund or monies ... for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

Montana is among 38 states that have no-aid-to-religion language in their state constitutions. Some call these measures “baby Blaine” amendments after the federal Blaine amendment, introduced in Congress in 1875 by James G. Blaine, then a member of the House of Representatives from Maine. The amendment would have made the federal constitution’s establishment clause applicable to the states and declared that no state tax money “shall ever be under the control of any religious sect.”

Although the federal measure failed, more than 20 states subsequently adopted state constitutional measures that in some form or other bar government aid to religious denominations and religious schools.

Montana’s rule limiting the scholarships to secular private schools was challenged as a violation of the free-exercise clause of the U.S. Constitution by parents who sought to use the scholarship aid at religious schools.

The Montana supreme court in 2018 invalidated the entire tax-credit program, for both religious and nonreligious schools, based on the state constitutional provision. But it stayed its decision, and money from scholarship contributors claiming the tax credit in the 2018 tax year is being used by a private organization to give $500 scholarships to about 40 families this school year.

Among those receiving the scholarships were Kendra Espinoza and her daughters Naomi and Sarah; and Jeri Anderson and her daughter, Emma. Both families were in the courtroom for oral arguments.

Also present were two groups of Catholic schoolchildren and school choice advocates, including Jeanne Allen, the president of the Center for Education Reform. On the other side, teachers’ union officials and advocates of strict separation of church and state listened to the arguments as well.

The arguments ranged from the era around the founding of the country, to the anti-Catholic backlash against immigrants in the mid-19th century, to Montana’s 1972 constitutional convention, which re-adopted the state constitutional provision barring aid to religion.

“We have a founding father, [James] Madison, lobbying heavily for the free-exercise clause and equally to stop states from both establishing religions or using public funds to support them,” said Justice Sonia Sotomayor, adding that Montana in its 1972 convention was not motivated by anti-Catholic bias but “decided that they were going to side with James Madison, one of the fathers of our Constitution, and continue to say we don’t want aid to churches.”

A Range of Objections

Kagan said there were many reasons why a state may eliminate the entire school choice program “that have nothing to do with animus toward religion. You might actually think that funding religion imposes costs and burdens on religious institutions themselves. You might think that taxpayers have conscientious objections to funding religion. You might think that funding religion creates divisiveness and conflict within a society, and that for all those reasons, funding religious activity is not a good idea and that you would rather level down and fund no comparable activity, whether religious or otherwise, than fund both.”

Kavanaugh suggested that the state no-aid provisions of the 19th century were rooted in “grotesque religious bigotry against Catholics. ... That was the clear motivation for this.”

Unikowsky said that while there was such bigotry at the time of Montana’s original state constitution, “in the 1972 Constitution, which is where this provision was enacted, I don’t think there’s any evidence whatsoever of any antireligious bigotry.”

A decision in the case is expected by late June.

A version of this article appeared in the February 12, 2020 edition of Education Week as High Court Leans Toward Support for Religious Schools


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