Law & Courts

U.S. Supreme Court Rejects Prohibition on Tax-Credit Scholarships for Religious Schools

By Mark Walsh — June 30, 2020 7 min read
The U.S. Supreme Court is seen Tuesday, June 30, 2020 in Washington.
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A sharply divided U.S. Supreme Court on Tuesday ruled that a Montana state constitutional provision barring aid to religious schools discriminated against those schools and families seeking to benefit from a state tax credit for scholarship donations.

“Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” Chief Justice John G. Roberts Jr. wrote for the court in a 5-4 decision. “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 decision came in Espinoza v. Montana Department of Revenue (Case No. 18-1195), which involves a $150 state tax credit for contributions to funds that provide scholarships for students to attend private schools, including religious schools.

The chief justice’s opinion appeared to cast doubt on provisions in as many as 30 state constitutions that bar aid to religious schools.

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

U.S. Secretary of Education Betsy DeVos, a longtime private school choice advocate who had attended the January arguments in the case, called the decision “a historic victory for America’s students.”

“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,” DeVos said in a statement. “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.”

But Randi Weingarten, the president of the American Federation of Teachers, which supported the state and its no-aid provision, said the decision was “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,” Weingarten said in a statement.

Two of the three parents who challenged the state’s decision had attended the Supreme Court arguments in January with their children: Kendra Espinoza and her daughters Naomi and Sarah; and Jeri Anderson and her daughter, Emma.

On Tuesday, the mothers were elated by the Supreme Court decision.

“We were yipping and hollering this morning,” Espinoza said in a conference call with reporters. “Today is a big victory for our family and for so many other families.”

Anderson said “having access to these scholarships is going to make a tremendous difference to Emma’s future education. She is at a school where she is thriving and which she loves.”

The three children attend Stillwater Christian School, a private religious school in Kalispell, Mont.

Gov. Steve Bullock of Montana, a Democrat who had allowed the tax credit program to go into effect without his signature but had joined the Department of Revenue in defending the state constitution’s no-aid provision, said in a statement that “Montanans have a constitutional right to a quality public education. I’m disappointed in today’s decision, and will continue the fight for public education in Montana.”

The chief justice’s opinion was joined by Justices Clarence Thomas, Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh, with Thomas, Alito, and Gorsuch filing concurring opinions.

The court’s more-liberal members issued or joined three separate dissents, offering different grounds.

Justice Ruth Bader Ginsburg, in a dissent joined by Justice Elena Kagan, said there was no burden put on the First Amendment free exercise of religion rights of the parents or religious schools in the case because the Montana Supreme Court had struck down the tax credit program in its entirety based on the no-aid provision.

“Accordingly, the Montana Supreme Court’s decision does not place a burden on [parents’] religious exercise,” Ginsburg said. “There simply are no scholarship funds to be had.”

Justice Sonia Sotomayor, in a dissent for herself, said the majority was wrong to decide the merits of the case because the tax credit program was struck down by the Montana Supreme Court in its entirety.

“Today’s ruling is perverse,” Sotomayor said. “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.”

Justice Stephen G. Breyer wrote a dissent, joined by Kagan in part.

“The majority’s approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the [First Amendment’s] religion clauses are intended to prevent,” Breyer wrote.

Implications for Other States

The Montana program was passed by a Republican-majority legislature in 2015 and modeled on similar programs in 18 other states.

Montana’s 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 some 38 states that have state constitutional provisions that bar aid to religion. 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 U.S. Constitution’s bar on government establishment of religion 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 was used by a private organization, Big Sky Scholarships, to give $500 scholarships to about 40 families during the 2019-20 school year.

Erica Smith, a senior attorney with the Institute for Justice, an Arlington, Va.-based legal organization that represented the parents who challenged the restriction, said the decision means the Montana tax credit program will be back in operation and the private scholarship fund will be able to resume issuing aid to families.

Scott Bullock, the president and general counsel of the institute, said on the call, “The court has now removed the largest state constitutional obstacle to education choice by holding that pernicious Blaine Amendments in state constitutions cannot be used to block choice for parents.”

Sanjay Talwani, a spokesman for the Montana Department of Revenue, said via email that the department was still assessing the decision and what it means for the tax credit.

’Bigoted Code Language’

The chief justice’s discussion of the role of the Blaine Amendment and “baby Blaine Amendments” generally was spare, particularly compared with Alito’s concurrence.

Roberts adopted language written by Thomas in a 2000 plurality opinion, in Mitchell v. Helms, that “the Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general.’”

While “the historical record is complex,” Roberts said, “the no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the free exercise clause.”

Alito joined the chief justice’s opinion in full, but wrote 13 pages in a concurrence that outlined the history of the federal and state Blaine measures, even reproducing in his opinion an 1871 cartoon published in Harper’s Weekly, which in his view captured the anti-Catholic “feelings of the day” by depicting “Catholic priests as crocodiles slithering hungrily toward American children as a public school crumbles in the background.”

“Montana’s no-aid provision retains the bigoted code language used throughout state Blaine Amendments,” Alito said.

Steven K. Green, a law professor at Willamette University in Salem, Ore., who had helped write a friend-of-the-court brief supporting Montana, said he was disappointed but not surprised by the decision.

“To a certain extent, the chief justice’s opinion was predictable,” Green said. “The bottom line is that the chief justice goes to the edge, but he doesn’t push these no-aid provisions over the cliff. But I think the opinion today effectively makes these provisions unenforceable.”

Green said he was somewhat disappointed that the dissenters did not take Roberts or Alito “to task for their use of history. I think they realized it was unwinnable at this point.”

Coverage of how parents work with educators, community leaders and policymakers to make informed decisions about their children’s education is supported by a grant from the Walton Family Foundation, at Education Week retains sole editorial control over the content of this coverage.”
A version of this article appeared in the July 15, 2020 edition of Education Week as U.S. Supreme Court Rejects Prohibition on Tax-Credit Scholarships for Religious Schools


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