Tag Archives: Espinoza v. Montana Dept. of Revenue

Post-Espinoza, It’s Time to Embrace More Pluralism

The majority opinion in Espinoza v. Montana Department of Revenue from Chief Justice Roberts could not be more clear: “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.” With this ruling, “Blaine Amendments” in state constitutions were essentially repealed. It’s an unequivocal victory for school choice advocates on the question of who can operate a school with public funding, decidedly in favor of a pluralistic approach.

Research shows that areas with more religious individuals are correlated with greater upward mobility. But the option for some students to attend religious schools is no panacea. As Espinoza forces state policy to become more agnostic on the question of who operates schools, policymakers will have to grapple with how to balance the autonomy of multiple school providers – public and non-public alike – with policies that protect the rights of families and ensure that public funding for education produces adequately educated citizens.

Schools from McKinley and Cibola Counties in NM gathered at the Cathedral for a Mass celebrated by Bishop James Wall.

Catholic school mass via Flickr user dioceseofgallup

The first question policymakers need to address is that of access: which families have access to which schools through public funding? All students – regardless of where they live – ought to have equal admissions access to publicly funded schools, whether they are operated by a public school district or a religious organization. This principle should be applied to voucher-type programs and public schools alike. Schools across all sectors have a nasty history of excluding poor and Black students, whether through attendance boundaries created to protect affluent white “public” schools or “segregation academies” in the private sector.. Public and private schools alike should embrace the principle that any student is welcome to apply for a fair shot at enrollment, regardless of where they lay down their head at night.

Second, just as families deserve fair access to publicly-funded schools, they should also not be forced to enroll their children at schools they view as harmful. Accordingly, policymakers must ensure that religious schools are not the only option available to families. No family should be effectively required to enroll their child at a school that violates their family’s religious beliefs. This is of greatest concern in rural areas, where the geographic density of students may not support multiple school operators. States could consider population density minimums or market share caps for private school operators to receive public subsidy in a given area.  Continue reading

What are Blaine Amendments and Why Might SCOTUS End Them?

Today the Supreme Court of the United States (SCOTUS) will hear oral arguments in Espinoza v. Montana Dept. of Revenue, a case that could have massive consequences for hundreds of thousands of K-12 students across the country — and might even lead to changes in several state constitutions. 

United States Supreme Court Building by Joe Ravi, Wikimedia license CC-BY-SA 3.0

The case centers on three families participating in Montana’s tax credit scholarship program, a policy that gave tax credits to people who donated to scholarship organizations, organizations which could then help low-income students pay for private K-12 schools, including private religious schools. However, the Montana Department of Revenue issued a rule stating that scholarships could not be used at religious schools, and later the Montana Supreme Court ruled that any aid to religious schools violated part of their state’s constitution, specifically a provision against public funding for “sectarian schools,” commonly known as a “Blaine Amendment.” Eighteen other states already have similar tax credit scholarship programs and 37 states have some form of Blaine Amendment. 

The three families, in partnership with the Institute for Justice, now have the chance to make their case before SCOTUS. The parents are arguing that their right to free expression of religion was violated by the ruling in Montana. The other side argues that funding any private school — religious or not — was unconstitutional at the state level and that overturning the state’s tax credit scholarship program did not lead to any violation of free expression. (SCOTUS started to define how state governments might provide funding to religious schools under the Constitution beginning in the 1970’s with Lemon v. Kurtzman and has been refined through subsequent cases, like Zelman v. Simmons-Harris in 2002 and Trinity Lutheran v. Comer in 2017.) Continue reading