It is about to get much harder for opponents of school choice to block parental freedom

Today, the United States Supreme Court will hear Espinoza v. Montana Department of Revenue, a case argued by the libertarian nonprofit Institute for Justice. Here’s the background of this litigation which is explained by the Institute much better than I could ever do:

“In 2015, the Montana Legislature passed a program that provided a tax break to Montanans if they contributed to charitable organizations that provide scholarships for children. The program allowed families to use those scholarships at any private school in Montana—religious or nonreligious. But the Montana Department of Revenue interpreted the state constitution to forbid the participation of religious schools. Representing families who were unable to participate in the program because they send their children to religious schools as well as one family who was able to use the scholarship before it was suspended, the Institute for Justice sued and won on their behalf at the trial court. But the Montana Supreme Court reversed that ruling and declared that the entire program was invalid because it included religious options for parents. By striking down the entire program, even for those children attending secular private schools, the court made the impact of the discrimination even worse. Thankfully, families were permitted to continue receiving scholarships through the 2019-2020 school year.”

Espinoza is relevant to two of the twenty seven amendments to the U.S. Constitution.

Amendment 1: Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.

The families involved who sought to use the scholarships to attend a Catholic school claim that their free exercise of religion is being obstructed.

Amendment 17, section 1: All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The action of the Montana Supreme Court, according to the Institute for Justice, denied equal protection of the law simply based upon their religious beliefs.

In addition, the organization argues that restricting families from sending their children to parochial schools under the scholarship plan represents discrimination against religious beliefs that is prohibited by the Establishment Clause.

The heart of the today’s argument will revolve around the concept of the Blaine Amendment. Blaine Amendments were included in the constitution of 37 states in the 19th century. During this period, schools were dominated by Protestants and there was a rejection of the new wave of Catholic immigrants to this country. Blaine Amendments are named after U.S. Senator Blaine who in 1875 attempted to get a constitutional amendment passed mirroring those that were later adopted in state constitutions preventing public money going to religious institutions. Public schools at the time were already religious, according to the I.J., teaching nondenominational Protestant ideas. Catholics sought to influence the nature of instruction taking place in schools, and when that effort failed, sought funding for their own educational institutions.

While opponents of school choice have over the years successfully utilized state Blaine Amendments to block implementation of school choice programs that have included sectarian facilities, there have been two important legal developments that have weakened this line of attack.

First, in Zelman v. Simmons-Harris, another school choice case argued by the Institute for Justice, the Supreme Court in 2002 found that a Cleveland private school voucher program that included Catholic schools provided tuition money to students and did not directly support religious entities. Then, in 2017, the Court ruled in Trinity Lutheran Church of Columbia, Inc., vs. Comer that preventing a church from getting access to a state grant available to other nonsectarian schools in order to improve the safety of public playgrounds was discriminatory against the religion.

School choice advocates were disappointed that Trinity did not invalidate state Blaine Amendments. This will come from the ruling this summer in Espinoza. Watch for the conservative-leaning Supreme Court to overturn the actions around the scholarship program in Montana.

According to I.J. president and general council Scott Bullock, “If we’re successful in Espinoza, we’ll remove the largest legal obstacle standing between thousands of children and their chance to receive a better education.”

Successful they will be.

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