Education groups and activists on all sides of the debate over private school choice agree that a Tuesday ruling by the U.S. Supreme Court will be tremendously consequential. But it may take some time for the ripple effects to spread.
In a 5-4 decision in Espinoza v. Montana Department of Revenue, the court held that a Montana prohibition on families from using state tax-credit scholarships at religious schools was an unconstitutional violation of religious freedom.
Here’s a rundown of what that means, and what comes next.
What Is a No-Aid Rule?
Montana is one of 38 states that have state constitutional amendments or “no-aid” rules that bar distribution of public funds to religious institutions. Such amendments are sometimes refered to as “Blaine amendments.”
Montana’s state department of revenue—which administers its program that provides tax-credits in exchange for donations to modest scholarships— had determined that, under the no-aid provision, families benefiting from the state’s program could not use those scholarships to send their children to religiously affiliated private schools.
Parent plaintiffs at the center of the Montana case, joined by the Trump administration, argued that decision violated their religious liberty. The state argued that that the constitutional provision kept Montana’s “own state legislature out of the business of funding of religious schools” and that it didn’t discriminate because the same rules applied to all scholarship families, regardless of their religion.
The court sided with the families Tuesday.
“To be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation,” Chief Justice John Roberts said in his majority opinion.
“Placing such a condition on benefits or privileges ‘inevitably deters or discourages the exercise of First Amendment rights,’” he wrote, citing the court’s 2017 opinion in Trinity Lutheran Church of Columbia v. Comer, which held that Missouri couldn’t bar a church from receiving state support for playground safety because of its religious affiliation.
Does This Mean States Have to Fund Private Education Now?
Seventeen states operate 22 tax-credit scholarship programs that provided awards to about 300,000 students in 2017, said a 2019 report from the Government Accountability Office.
Some public education groups that oppose public funding for private school choice programs have argued that a ruling for the families in the Espinoza case could swing open the doors for greater public funding of private, religious education. But, if that’s true, the effect won’t be immediate in most states.
Some states with large voucher and tax-credit scholarship programs, like Florida and Indiana, allow those funds to be used at private schools, even though their state constitutions contain no-aid provisions.
And there’s nothing in the court’s opinion that would require a state to start a private school choice program if it doesn’t already have one.
“A State need not subsidize private education,” Roberts wrote in the majority opinion. “But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
Attorneys for the Institute for Justice, who argued on behalf of parents in the case, said they will next turn their attention to the two states—Maine and Vermont—that bar religious schools from their private school choice programs.
The organization has an active case in Maine, in which three families challenged the exclusion of religious schools from a “tuitioning towns” program, through which some school districts that don’t have high schools instead provide funds to families to send their children to public and private schools elsewhere.
A district court judge upheld Maine’s exclusion last year, and the families appealed the decision to the U.S. Court of Appeals for the First Circuit in Massachusetts. Attorneys for the Institute for Justice plan to file a new brief in that case, citing the Espinoza decision, attorney Tim Keller said. And the organization hopes to file a similar lawsuit in Vermont, applying the Espinoza ruling in its arguments.
“We are going to build upon this decision...to make sure that any further legal impediments don’t stand in the way of school choice programs,” IJ President General Counsel Scott Bullock said on a call with reporters Tuesday.
Of the states with no-aid provisions, 14 have determined those rules bar the use of publicly funded school choice programs to private religious schools, the attorneys said. Some of those states have not established voucher or tax-credit scholarship programs, and the IJ attorneys hope Tuesday’s decision will encourage them to do so.
“The legal impediments to effective school choice programs are now removed, and it’s up to the legislators now to move forward,” said attorney Dick Komer, who argued for the Espinoza plaintiffs in court.
States most likely to act on the decision are Idaho, Missouri, South Dakota, and Texas, the attorneys speculated, citing previous discussions about how those state’s constitutions who affect potential tax-credit scholarships proposals.
U.S. Secretary of Education Betsy DeVos, who has proposed a federal tax-credit scholarship program and has championed state-level efforts, praised the ruling. She issued a statement “calling on all states to now seize the extraordinary opportunity to expand all education options at all schools to every single student in America.”
The White House, in a statement, praised the ruling, saying it “removes one of the biggest obstacles to better educational opportunities for all children.”
Why Are Some Advocates Worried About What Comes Next?
Opponents of voucher and tax-credit scholarships argue they siphon public funds away from public schools, which provide education to the vast majority of U.S. students.
In its ruling, 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 by the National Coalition for Public Education, a group of organizations that oppose private school choice programs. “Now more than ever, as our country tries to rectify our history of racial injustice, we need to invest in our public schools that welcome all children and unite our communities, not in private schools that further divide us.”
Some civil rights groups have argued that religious schools, in particular, may discriminate against students because of their sexual orientation or gender identity. This was an issue in debates over expanding Florida’s school choice programs recently after a January Orlando Sentinel investigation found 83 participating private schools had written policies barring attendance by LGBTQ students and, in some cases, the children of gay and lesbian couples.
GLSEN, an organization that represents LGBTQ students, said Tuesday that the Supreme Court’s decision would essentially force taxpayers to fund discrimination.
“Our opponents have made it clear that they intend to leverage this decision to pave the way for further privatization across the country,” GLSEN Executive Director Eliza Byard said in a statement. “If we are ever to achieve liberation for LGBTQ people and undo the legacy of racism and slavery in this country, we must block these efforts and ensure we are using our taxpayer dollars to make our nation’s schools safe and enriching for all students, not starving our public schools of essential funds and sustaining anti-LGBTQ school environments that put our young people at risk.”
Where Will This Take Debate Over the Church-State Divide in Education?
The Espinoza decision fits into a canon of religious liberty cases, all heavily watched for their potential application in future arguments.
At oral arguments in January, Justice Stephen Breyer gave a hint to the complicated web of questions that will follow the ruling when he asked about the possibility of church-run charter schools.
“Say in San Francisco or Boston or take any city or state, and they give many, many, many millions of dollars to the public school system, and a lot of them give a lot of money to charter schools,” Breyer said to Jeffrey Wall, the principal deputy U.S. solicitor general, who argued against Montana’s no-aid clause. “Now, they don’t give money to Catholic schools. All right? Now, if we decide you’re right, does that all change?”
Legal experts who spoke to Education Week in January about that line of questioning agreed it’s quite complicated and that a ruling against Montana wouldn’t immediately pave the way for a religious charter school. But the question itself demonstrated the kinds of complicated questions that may come next, they said.
Asked Tuesday by a reporter about the possibility of religious charter schools, lawyers for the parents in Espinoza rejected the idea.
“Charter schools are public schools, and they receive direct public funding,” Keller said. “There is not an opportunity under this ruling for states to authorize religiously affiliated charter schools.”
Photo: School choice supporters from eight schools demonstrate in front of the U.S. Supreme Court during oral arguments in the Espinoza v. Montana Department of Revenue case in January--Graeme Sloan/Education Week