The U.S. Supreme Court delivered a major victory Tuesday to parents seeking state aid for their children’s religious school education in a case that put Montana center stage.
The court ruled 5-4 on Espinoza vs. the Montana Department of Revenue, in an opinion written by Chief Justice John Roberts, that states offering scholarships to students in private schools cannot exclude religious schools from such programs. The court stopped short of requiring states to fund religious education, ruling only that programs cannot differentiate between religious and secular private schools.
“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,” Roberts said.
It was a decision long sought by proponents of school choice and vehemently opposed by teachers’ unions, who fear it could drain needed tax dollars from struggling public schools.
Roberts and other conservative justices said the no-aid policy had its roots in constitutional amendments in 37 states, many rooted in 19th-century anti-Catholic sentiment, that blocked religious schools from receiving public funds.
“The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general,'” he wrote. “Many of its state counterparts have a similarly ‘shameful pedigree.'”
The court’s ruling brought together four Catholic justices with Associate Justice Neil Gorsuch, who was raised Catholic but attends an Episcopal church. Dissenting were three Jewish justices and one Catholic, Associate Justice Sonia Sotomayor, USA Today reported.
Conservative groups had flooded the high court with arguments supporting Espinoza and her fellow Montana parents’ cause. Having long sought legislative backing for school voucher and tax credit programs, they saw the case as a judicial promised land.
Teachers unions and civil rights groups warned that if the floodgates open for religious school funding, public schools that educate about 90% of students will suffer.
The decision was met with praise and criticism.
Gov. Steve Bullock said “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,” he said.
Raph Graybill, legal counsel for Bullock, was a Montana attorney on the case in the Supreme Court on January when the case was heard.
“I am very proud of the work we did to fight for the Montana Constitution and public schools,” he said. “While I am disappointed in the court’s decision today, I respect it.”
He said the court did not invalidate the “no aid clause,” that is still in the state constitution.
“The Montana Constitution separately guarantees the right for a quality public education for all,” he said, adding that whatever comes next, the state’s commitment to public education will have to guide decision-makers.
Elsie Arntzen, state superintendent of public instruction, said she appreciated the court reaffirming the intent of the Montana Legislature to provide families with equal access to a tax credit.
“I strongly support Montana’s public schools and have always advocated for the statutory promise of full funding for our K-12 public schools,” she said in an email. “I also support opportunities for families to send their children to the school that best fits their needs and their ability to have equal access to a tax credit which supports that education.”
Others offered comment as well.
“Today’s decision violates Montana’s commitment to public education, our children, and our Constitution,” said Amanda Curtis, president of the Montana Federation of Public Employees. “Extremist special interests are manipulating our tax code to rob Montana children of quality education while padding the pockets of those who run exclusive, discriminatory private schools.”
“During this time of uncertainty, Montana’s public educators have stepped up to the plate and they deserve our support now more than ever,” Curtis said. “This decision is a slap in the face to our members and the Montana communities they serve. Public dollars should support public institutions that benefit all of us, not private, religious institutions that benefit a select few.”
The Center for Education Reform, which filed an amicus brief on behalf of the plaintiffs, heralded the decision.
“The weight that this monumental decision carries is immense, as it’s an extraordinary victory for student achievement, parental control, equality in educational opportunities, and First Amendment rights,” said Jeanne Allen, CER founder and chief executive.
“For many families, Espinoza not only provides the potential for expanded opportunities for them to educate their children, including the choice of religious education, but also the right to decide what they believe is the most effective way to do so.”
The lawsuit has been described by some participants, such as CER, as the most monumental case regarding education and civil rights in more than 60 years.
Espinoza v. the Montana Department of Revenue stems from a dispute on a Montana scholarship program approved by the Legislature in 2015 for private K-12 education that also makes donors eligible for up to $150 in state tax credits. Montana is among 37 states that have constitutions that prohibit religious schools from receiving state aid.
The Virginia-based Institute for Justice filed the lawsuit on behalf of Montana parents Kendra Espinoza, Jeri Ellen Anderson and Jamie Schaefer. Their attorneys describe them as mothers with “modest incomes who were counting on the program scholarships to keep their children in Stillwater Christian School, a nondenominational school in Kalispell.
“The Supreme Court delivered a major victory to parents who want to choose the best school for their children, including religious schools,” Institute for Justice Senior Attorney Erica Smith, who was co-counsel on the case, said Tuesday. “This is a landmark case in education that will allow states across the country to enact educational choice programs that give parents maximum educational options.”
The parents praised the decision, saying it would benefit others as well.
“Today is truly a historic moment and a big victory for our family and for so many other families,” Espinoza told reporters after the vote had been announced, adding the justices upheld freedom of religion.
“For our family that means being able to receive scholarships without discrimination and that is a very big win for all of America,” she said.
Anderson echoed those comments, saying that having access to scholarships “is going to make a tremendous difference” toward her daugther’s future education “and help keep her in a school where she is thriving.”
Alex Rate, legal director of the ACLU of Montana, criticized the decision.
“The Supreme Court’s ruling reverses a well-reasoned opinion by the Montana Supreme Court recognizing that the framers of Montana’s Constitution were committed to ensuring that public education remains free from religious entanglement,” he said. “Today’s decision ignores that commitment.”
It’s a case that has prompted participation from some of the remaining delegates of Montana’s 1972 Constitutional Convention and two of Montana’s three current members of Congress.
The plaintiffs say about 70% of Montana private schools for K-12 students are religious, “and excluding them severely limited the choices of families.”
A district court in Flathead County ruled for the parents in 2016, but the Montana Supreme Court said in 2018 it conflicted with the state Constitution and invalidated the scholarship program.
Montana’s Constitution bars direct and indirect aid to religious institutions. It is among 37 states that have adopted what’s known as a Blaine Amendment, which is aimed to prevent the use of public funds to support parochial schools.
Senate Bill 410, a school-choice bill passed by the 2015 Legislature, allowed tax credits for donations of up to $150 to private school scholarships or to innovative educational programs in public schools, up to $3 million in the first year.
The Montana Department of Revenue excluded religious schools from the rule on the grounds that the Montana Constitution bars appropriations to sectarian schools, organizations or affiliated groups.
The bill’s author, Llew Jones, a Conrad Republican who was then a state senator but now serves as a representative, had said the bill was to include all schools and accused the Department of Revenue during a 2015 public hearing of taking it in a direction he had not intended.
Llew Jones, then a state senator, speaks at a Montana Department of Revenue hearing shortly after his bill passed in 2015. He opposed excluding religious schools from the program.Buy Photo
Llew Jones, then a state senator, speaks at a Montana Department of Revenue hearing shortly after his bill passed in 2015. He opposed excluding religious schools from the program. (Photo: Tribune photo/Phil Drake)
“The winner is the students,” Jones said Tuesday after the decision was released. “My bill allowed taxpayers to prioritize education and student opportunities in both private and public schools. It was carefully crafted to ensure both public and private students would benefit.
Montana Attorney General Tim Fox said Tuesday he warned the Department of Revenue in 2015 that their decision would not hold up in court.
“I urged the Bullock Administration not to adopt it for the very reason the U.S. Supreme Court issued its ruling,” Fox said Tuesday. “The court echoed and even pointed out our analysis showing the rule to be discriminatory and unconstitutional.”
Sen. Steve Daines and Rep. Greg Gianforte, both Montana Republicans, are part of an amicus brief on behalf of the plaintiffs. Sen. Jon Tester, D-Mont., did not participate, saying the state’s Constitution is clear on where Montanans’ tax dollars can and can’t be spent.
“I’m very glad the U.S. Supreme Court ruled to overturn the State of Montana’s discriminatory action and support three Montana mothers who were trying to do what’s best for their children’s education,” Daines said Tuesday. “Today is a major victory across Montana and the country for religious liberty. Religious discrimination has no place in our country.”
Daines was invited by Justice Clarence Thomas to hear the oral arguments in January.
Gianforte also praised the decision.
“Today’s ruling is a step in the right direction to ensure our kids have access to the best possible education that meets their unique, individual needs,” he said. “While this is a promising step toward that goal, another step we must take is to get more resources to our classrooms and teachers.”
Tester was critical of the court ruling.
“This troubling decision out of Washington, D.C. undermines our public schools and will hurt future generations,” he said. “A strong public education system is the foundation of our democracy, and I will continue to fight aggressively against any attempt to divert resources away from our schools.”
American Federation of Teachers President Randi Weingarten blasted the decission, calling ituling in the Espinoza case is a seismic shock that threatens both public education and religious liberty. It is a radical departure from our Constitution, American history and our values. As Justice Sonia Sotomayor said in her dissent, this ruling is ‘perverse.’
The Trump administration had sided with the parents. President Donald Trump has long championed prayer in schools, and January’s oral argument in the case was attended by Secretary of Education Betsy DeVos, a longtime proponent of religious schools.
“The Trump administration believes that school choice is a civil rights issue, and that no parent should be forced to send their child to a failing school,” White House press secretary Kayleigh McEnany said. The president, she said, “will fight for school choice, and he will always defend our first freedom: the free exercise of religion.”
The U.S. Supreme Court decided in June 2019 it would hear the case. It typically receives 7,000-8000 petitions every term, which begins in October. Of those, it agrees to review between 60 and 70 cases, according to its website. A review of the court’s website shows the justices have 66 cases scheduled this term.
It was heard by the court Jan. 22, during a week in Washington in which Chief Justice John Roberts oversaw the U.S. Senate impeachment hearing on President Donald J. Trump.