U.S. Supreme Court gives school choice greatest victory in 18 years

Yesterday, in its final day of the current term, the United States Supreme Court, in a five to four decision, ruled in Espinoza v. Montana Department of Revenue that a school tuition tax credit program in Montana should have been allowed to include religious schools as recipients of the scholarships. The program was shuttered by the Montana Supreme Court because it permitted parents to send their children to sectarian schools as well as those that are nonreligious.

The finding of the court, written by Chief Justice John Roberts, could not have been clearer:

“The application of the no-aid provision discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.”

In other words, the failure to allow parents to enroll their children in a religious school interfered with their free exercise of religion.

It is the most important U.S. Supreme Court decision since Zelman v. Simmons-Harris in 2002. In that case, the Court found that the inclusion of religious schools in a Cleveland private school voucher plan did not violate the Establishment Clause of the First Amendment of the U.S. Constitution. Zelman was a tremendous and hard-fought victory for school choice, and like Espinoza, was argued by the libertarian Institute for Justice. But there was also a tremendous difference between the two legal actions.

Cleveland’s state constitution does not include a Blaine Amendment, language contained in 37 state constitutions that prohibit taxpayer funds from going to religious schools. Here is what I wrote about Blaine Amendments last January when the U.S. Supreme Court head arguments in Espinoza and I predicted the eventual decision would be a victory for educational freedom:

“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.”

Blaine amendments have been used time and time again in the past to invalidate school choice plans that have allowed parents to pick religious schools. Now that this decision has come down and Blaine Amendments invalidated, look for the floodgates of private school choice programs to open widely across the country.

The Washington Post, as it has done since I met with former editorial page director Colbert King in 1999, again came out strongly in favor of the Supreme Court’s reasoning:

“We think there is value in, and have supported, programs that — like the one envisioned by Montana lawmakers and D.C.’s successful Opportunity Scholarship Program — help low-income parents afford a choice in their children’s education, a choice that parents empowered with the economic means exercise by moving to a particular school district or sending their children to private school. It is important to remember that the scholarship goes to the child, and that the child’s family then decides which school best meets the needs of individual students. Schools that participate in these programs must meet academic requirements established by the state or locality, and some religiously affiliated schools have proved successful in boosting student achievement, attendance and civic engagement.

Ms. Espinoza chose Stillwater Christian School not because she wanted to advance its interests but because she wanted a school that fit her daughters’ needs and was a place where they could thrive. They — and other students who stand to benefit from opportunities opened up — are the true winners.”

In the midst of a pandemic, severe economic strife, and racial unrest, we can smile for a moment over the Supreme Court’s decision. It is possible that in the future there will be other wranglings over the constitutionality of programs that allow parents to pick the school of their choice for their children. But there will never be one as significant as Espinoza.

As we approach the Independence Day Fourth of July celebration, freedom just won a great triumph.

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