Originally published in The American Prospect on January 22, 2020.
The Supreme Court heard oral arguments on Wednesday in a consequential case concerning how and whether taxpayer money can flow to religious schools. Supporters of the plaintiffs hope a favorable outcome could pave the way for more government subsidies to private schools, while opponents say the future of public education hangs in the balance.
The case, Espinoza v. Montana Department of Revenue, centers around a tax-credit scholarship program the Montana legislature established in 2015. Under the program, individuals who donate to nonprofits that award private-school tuition grants could receive a modest tax credit up to $150. According to the advocacy group, EdChoice, similar tax-credit scholarships exist in 17 other states, serving over 270,000 students.
But after the program launched, Montana’s Department of Revenue decided religious schools, which make up the majority of private schools in the state, were ineligible to receive the scholarships, due to a provision in the Montana constitution barring any “direct or indirect appropriation” to churches or other religious entities.
Parents sued, calling the rule discriminatory, and in May 2017 a trial court ruled in their favor. But the Montana Supreme Court reversed that decision in late 2018, concluding that the tax-credit scholarship program did in fact violate the state’s constitution. As a result, the state’s high court struck down the tax-credit program altogether, for religious and secular private schools alike.
Now the parents are challenging the federal constitutionality of this “no aid” provision. Montana is one of 37 states to have such provisions in their constitutions barring state funding from going to religious entities.
The U.S. Supreme Court has long held it’s legal for states to include religious schools in their private-school voucher programs. But now the justices have to decide if it should be effectively mandatory to include religious schools in state voucher programs, and whether it would be unconstitutional to offer no subsidies to religious schools at all.
Justice Sonia Sotomayor voiced skepticism that the parents had standing to challenge the Montana program, rather than taxpayers or schools. “I’m sorry, is there any case we’ve ever had where we’ve recognized a party who wasn’t either the taxpayer or the direct recipient of the taxes?” she asked. “So here the parents aren’t just the taxpayer; they’re not the schools that receive the money. Neither are they guaranteed receipt of the money [because] we’re told that there’s less money [available] than applicants. So they’re like three levels removed.”
Representing the plaintiffs on Wednesday were Richard Komer, with the libertarian law firm Institute for Justice, and Jeffrey Wall, from the U.S. Department of Justice.
The plaintiffs’ case hinges on Trinity Lutheran v. Comer, a 2017 U.S. Supreme Court decision which found that Missouri had violated the Constitution by excluding a church from a state-funded program to make playgrounds safer. “The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution,” wrote Chief Justice John Roberts in his majority opinion. In a significant footnote to that opinion, Roberts added that their decision “involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.” Nevertheless, the plaintiffs say the facts in that case and this one are broadly the same.
Komer stressed that the tax-credit scholarship program should be seen more as “a kind of a psychic benefit” to the donor and as a financial benefit to the receiving families. The discussion was reminiscent of a larger debate among school choice proponents over whether taxpayer money for education should be seen as an entitlement of individual parents, or funds dedicated to public schools.
Several justices also questioned on Wednesday the idea that Montana was discriminating against religious families, since the entire scholarship program was struck down. “The parents of both are affected in the exact same way,” Justice Elena Kagan said.
“These parents are treated no differently than parents of children who are going to secular private schools, so where is the harm?” asked Justice Ruth Bader Ginsburg.
“I mean, we don’t usually sort of grade every line of a [state court’s] opinion,” added Sotomayor. “Usually we look to an opinion, and … its consequence in the world. And the consequence of this decision is that there is no discrimination.”
Supporters of the plaintiffs have called this general argument “too clever by half” and say the fact that the program was eliminated so as to not discriminate against religious families still amounts to religious discrimination. Komer, in the courtroom, emphasized that the no-aid clause itself “requires discrimination.” Yet his ultimate position was fuzzy, because he also insisted states are not inherently required to fund religious schools.
The most sympathetic justice to the plaintiffs was Justice Samuel Alito, who seemed open to the idea that there was a reasonable relationship between Trinity Lutheran and Espinoza. He said the “crucial question” is not what Montana did when it applied its constitutional “no aid” clause, but why the state applied it at all. “If it did what it did for an unconstitutionally discriminatory reason, then there’s a problem under Village of Arlington Heights,” he said, referring to a 1977 case that dealt with a discriminatory zoning ordinance.
The plaintiffs and their conservative allies have insisted that Montana’s constitutional “no aid” clause is an expression of 19th-century anti-Catholic bigotry, but at the hearing on Wednesday Adam Unikowsky, a Jenner & Block attorney representing the state, stressed there is “no evidence whatsoever” that Montana’s “no aid” provision, ratified in 1972, was enacted for any reason other than to protect religious freedom and the state’s public-education system. Multiple faith-based leaders testified in support of the amendment back in 1972, Unikowsky added.
Ultimately, the case did little to resolve the major outstanding questions, and in some cases raised new ones. Komer and Wall offered at times conflicting statements about how broadly a ruling in their favor would extend beyond the particulars of this Montana scholarship program. Justice Stephen Breyer, for his part, asked multiple times if a favorable ruling for the plaintiffs would mean that a state like New York, which spends “many millions of dollars” on public education, would now need to fund private and religious schools, too. “If I decide for you, am I saying that they have to give money to the—same amounts proportionate to—to the parochial school?” he asked.
Breyer was not given a straight answer.
Montana argued in its brief that a ruling in favor of the plaintiffs would be a major blow to federalism. “Different states, with different legislatures and different constitutions, will arrive at different policies respecting scholarship programs specifically, and support for private education more generally,” it wrote in its Supreme Court brief. “That debate … is something to celebrate not quash.”
Unlike in 2017, the Court now has a more conservative majority with Justice Brett Kavanaugh on the bench. Historically, Kavanaugh has taken legal stances to break down barriers between church and state, and in 2000 he helped defend Florida’s private-school voucher program, which was ultimately deemed unconstitutional.
At the hearing, Kavanaugh seemed inclined to view Montana’s “no aid” provision as a so-called “Blaine Amendment,” just as the petitioners and their conservative allies insist. In 1875, largely in response to Irish and Roman Catholic immigration to the U.S., Representative James Blaine of Maine introduced a federal constitutional amendment to prohibit public money from going to religious schools. The amendment passed the House but failed to garner a supermajority in the Senate. Following that, depending on where you sit, Congress encouraged—or pressured—other states to adopt similar state constitutional provisions.
Petitioners have argued that Montana’s “no aid” clause is the result of the same well-documented anti-Catholic bigotry that motivated Blaine, but Montana says this is inaccurate. “Petitioners rely on contemporary statements by private citizens, which are an unreliable basis for discerning the government’s intent,” the state said in its brief. The plaintiffs also insist the constitution’s use of “sectarian” was a euphemism for “Catholic,” which Montana also disputes.
“It’s very clear from the records of those proceedings that the delegate’s intention was to protect public education,” said Jessica Levin, a senior attorney with the nonprofit legal-advocacy group the Education Law Center. “It was not to express animus or hostility to religion, but to recognize the supreme importance of public education and preserving the already limited funds available for that.” Levin co-authored a brief submitted to the Court laying out the evidence that the framers of both the 1889 and 1972 conventions backed the “no aid” provision primarily to protect public schools.
Depending on how the Court rules, the case could have massive implications. Advocates for public education see a positive ruling for the plaintiffs as deeply threatening to both the separation of church and state and the ability to financially maintain a robust public-education system.
“This case is not about improving education for schoolkids, it’s about expanding vouchers, privatization—the systematic effort to dismantle our neighborhood public schools,” said Lily Eskelsen García, president of the National Education Association, on a press call last week. “This represents just the latest stealth political attack on public education, and they’re using the Supreme Court to move their political agenda.”
Randi Weingarten, the president of the American Federation of Teachers, has called this case an “earthquake” and one that would “turn the First Amendment on its head.”
School choice advocates are hopeful that a positive ruling could make it easier to expand voucher programs to private and religious schools, and make it harder for the government to exclude religious schools from student-aid programs.
Right-wing organizations like the Mackinac Center for Public Policy in Michigan have said that a favorable Espinoza ruling “could remove the remaining major legal obstacle to universal educational choice in many states.”
Others say perhaps the changes will be less profound. As the education news site Chalkbeat noted yesterday, 18 states with “no aid” provisions already have voucher programs that allow for religious schools. Many states have gotten around their constitutional prohibitions by using tax-credit programs as a legal work-around for direct subsidies. Montana’s is the first tax-credit scholarship program to be successfully challenged in court.