The United States Law Week

Supreme Court Boosts School Vouchers in Religious Rights Ruling

June 30, 2020, 5:18 PM

A divided U.S. Supreme Court said states must include religious schools in programs that offer taxpayer subsidies for private education, in a ruling that could affect more than a dozen states and spur a new push for school vouchers.

The justices, voting 5-4, said Tuesday the Montana Supreme Court violated the U.S. Constitution’s religious-freedom clause when it struck down a scholarship program used primarily to send children to faith-based schools. The Montana court had said the program ran afoul of a state constitutional provision barring aid to religious schools.

Writing for the nation’s highest court, Chief Justice John Roberts said the state no-aid provision violated the U.S. Constitution’s protections for religious liberty, at least when applied to the scholarship program.

“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.”

Justices Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented. Ginsburg wrote that the Montana court, by striking down the program, “put all private school parents in the same boat.” Sotomayor called Tuesday’s Supreme Court ruling “perverse.”

The 2015 Montana scholarship program gives individuals and corporations a tax credit for contributing as much as $150 a year to an organization that funds scholarships to help needy students attend private schools.

Suing Mothers

Three mothers sued after the Department of Revenue issued a rule that barred use of scholarship money at religious schools. The parents have been using the funds to send their children to a Christian school in Kalispell, Montana, and they say they might not be able to afford the school otherwise.

A state trial judge ruled that religious schools must be eligible for the aid. The Montana Supreme Court then threw out the entire program, saying it would violate the state constitution if money supported religious schools.

The Montana constitutional provision was originally adopted in 1889, at a time when anti-Catholic bias was rampant. Critics say the provision is a “Blaine Amendment,” similar to a proposed U.S. constitutional amendment that would have outlawed direct federal aid to religious schools.

Montana officials said the provision was re-adopted in 1972 with the legitimate goal of protecting religious schools from political influence.

‘Seismic Shock’

Lawyers at the Institute for Justice, the group that represented the parents in the case, said 37 states still have Blaine Amendments, and 14 of those interpret the amendments to bar religious schools from taking part in school-choice programs.

“Those 14 states are now prohibited under the ruling from excluding religious options,” Tim Keller, a lawyer with the group, told reporters.

Keller said two states without Blaine Amendments, Maine and Vermont, would also be affected because they exclude religious schools from their school-choice programs.

President Donald Trump, on Twitter, called the ruling “a historic win for families who want SCHOOL CHOICE NOW!”

Randi Weingarten, president of the American Federation of Teachers, said in a statement that the ruling is “a seismic shock that threatens both public education and religious liberty.” She added, “It is a radical departure from our Constitution, American history and our values.”

Montana officials said the state court was right to invalidate the entire program if any of the money would go to religious schools. The Montana Department of Revenue said more than 90% of the scholarships went to students attending religious schools.

The only organization formed under the law, Big Sky Scholarships, supports just one non-religious school along with 12 religious schools, the state said. Big Sky awarded 54 scholarships during the most recent school year, totaling $27,000.

“Our First Amendment rights have been upheld, which is incredible for us,” Kendra Espinoza, the lead plaintiff in the case, told reporters. “For our family, that means being able to receive scholarships without discrimination.”

Almost 20 states have similar scholarship programs, according to a filing in the case by school-choice advocates.

The case is Espinoza v. Montana Department of Revenue, 18-1195.

To contact the reporter on this story:
Greg Stohr in Washington at gstohr@bloomberg.net

To contact the editors responsible for this story:
Joe Sobczyk at jsobczyk@bloomberg.net

Laurie Asséo, Elizabeth Wasserman

© 2020 Bloomberg L.P. All rights reserved. Used with permission.

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