By Kathryn Hickok
The U.S. Supreme Court ruled June 30 in Espinoza v. Montana Department of Revenue that states’ school choice laws may not discriminate against religiously affiliated schools.
Montana’s tax credit scholarship program, passed in 2015, enabled families to send their children to the private schools of their choice. The program was ruled unconstitutional by the Montana Supreme Court because some participating students wanted to apply their scholarships to religious schools, which the Department of Revenue argued violated the state’s Blaine Amendment. The Institute for Justice (IJ) appealed this decision on behalf of parents, arguing that the Court’s decision violated the Free Exercise, Equal Protection, and Establishment Clauses of the U.S. Constitution.
The Supreme Court decided in favor of the Montana parents, stating 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.”
Reacting to the Court’s ruling, IJ’s president and general counsel Scott Bullock commented:
The Montana high court claimed, as [educational] choice opponents have for decades, that allowing parents like Kendra [Espinoza] to [use a tax credit scholarship at a religious school] violated the state constitution’s Blaine Amendment—which forbids state funding of so-called sectarian institutions. The U.S. Supreme Court made clear in its ruling today that it was wrong. As Chief Justice Roberts wrote in the majority opinion, “Drawing on ‘enduring American tradition,’” the Court has long recognized the rights of parents to direct the upbringing of their children.
Back in 1926, another private school controversy made it all the way to the Supreme Court. With the goal of preventing students from choosing a Catholic education, the state of Oregon had outlawed all private schools. In the landmark ruling Pierce v. Society of Sisters, the Supreme Court wrote that “[t]he fundamental theory of liberty…excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only.”
Parents have a right to direct the education of their children—they did in 1926 and they still do today. The Supreme Court’s ruling in Espinoza v. Montana upholds parental choice in education by ensuring that state-run school choice programs don’t discriminate on the basis of religion.
Kathryn Hickok is Executive Vice President at Cascade Policy Institute, Oregon’s free market public policy research organization. She is also Director of Cascade’s Children’s Scholarship Fund-Oregon program, which provides privately funded scholarships to lower-income Oregon children to help them attend the tuition-based schools of their choice.
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By Miranda Bonifield
When Kendra Espinoza’s husband suddenly left their small family, her two daughters’ lives were thrown into chaos. Separation is never easy on kids. But on top of all the normal anxieties of the situation, Naomi and Sarah went from homeschooling with a stay-at-home mom to enrollment in the local public school while their mom worked. While this might be a smooth transition for some kids, Naomi was bullied and Sarah struggled in her classes.
Kendra knew it wasn’t the right option for them. So, the Montana mother took a second job and pursued every financial avenue she could to send them to a Christian private school. There, her daughters flourished in an environment where Kendra felt they were learning good values.
Tuition became more burdensome when in 2017 Montana ended the tax credit scholarship that helped stabilize Naomi and Sarah’s lives. The small program had allowed Montana taxpayers to deduct up to $150 from their taxes when they voluntarily donated to scholarship organizations that helped kids like the Espinozas.
Montana’s tax credit scholarships could be used at any school, whether secular or religious, until the Montana Department of Revenue chose to interpret the state’s prohibition against aid to religious organizations to include participation in this program. Though a trial court found in favor of families’ free exercise, the Montana Supreme Court struck down the entire scholarship tax credit to avoid either benefiting or discriminating against religious schools. On January 22, the Supreme Court heard oral arguments in the case Espinoza v. Montana Department of Revenue.
Ending a scholarship program which helped families across the state solely to prevent religious schools from benefiting is arguably a violation of the free exercise and equal protection clauses of the U.S. Constitution. Previous Supreme Court cases like Trinity Lutheran v. Comer (2017) established that a church’s status as a religious organization may not be used to deny it benefits from an otherwise secular aid program.
Montana has argued, tenuously, that the precedent set in Locke v. Davey allows a state educational funding program to refuse funding explicitly religious options such as pastoral degrees. But even the scholarship program in Locke included religious schools and religious classes, drawing the line only at explicitly religious purposes.
Montana’s tax credit scholarship, which originally assisted school-aged children to attend any participating private school, could have legally and Constitutionally continued to help Kendra Espinoza and her kids without providing undue support to religious organizations. In fact, out of 29 states with a total of 62 school choice programs, Montana’s is the only program which chose to explicitly remove support for religious schools on the basis of their religion.
While school choice programs may allow funding to be directed to a variety of schools, the real beneficiaries are the families who can choose schools which help their unique children. The real beneficiaries are kids like Naomi and Sarah. Espinoza v. Montana is less a question about public funding for private schools and more an issue of equal access to education for American families. While striking down Montana’s tax credit scholarship program removed options for all children, it disproportionately impacted the children of low-income families for whom private school tuition is at best a major sacrifice and at worst an impossibility.
For moms like Kendra, school choice isn’t a distant political ideal. It’s an immediate practical reality which means the difference between watching your child struggle through a one-size-fits-all system and choosing a school that can nurture your child’s growth. This month’s arguments in Espinoza v. Montana should become an important precedent for defending a family’s right to choose an education consistent with their values, bringing a fairer understanding of what it means to provide equal access to education.
A favorable ruling in Espinoza v. Montana could help empower families who otherwise would be unable to attend private schools—a boon both to public schools which would benefit from increased competition and to students who could thrive with the education that best fits them.
Miranda Bonifield is a Research Associate at Cascade Policy Institute, Oregon’s free market public policy research organization. She is also the Program Assistant for the Children’s Scholarship Fund-Oregon program, which helps lower-income Oregon children attend private and parochial elementary schools through partial-tuition scholarships.
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