Acton Institute Powerblog

Espinoza v. Montana: A victory for school choice – but for how long?

The U.S. Supreme Court’s decision in Espinoza v. Montana Department of Revenue admirably defended religious liberty, school choice, and parental rights. However, the court may have also paved the way for teachers unions and hostile politicians to undermine that victory.

On June 30, the Supreme Court ruled 5-4 that excluding religious schools from a privately-funded, state-established scholarship program is an “infringement on free exercise” of religion and is “fatally underinclusive” by denying benefits to people of faith.

“Discrimination against religious schools and the families whose children attend them,” wrote Chief Justice John Roberts, is “‘odious to our Constitution’ and ‘cannot stand.’” The Supreme Court ruled that politicians cannot stand in the schoolhouse door to discriminate against a class of citizens, whether they be people of color or people of faith.

The state of Montana established the “Big Sky Scholarship” for low-income recipients to send their children to the secular or religious school of their choice. It also allowed those who funded the scholarship to write-off a donation of up to $150 from their taxes. But the Montana Supreme Court struck down the entire program after ruling that it violated a provision of its state constitution, known as the Blaine Amendment, which bars “any public fund or monies” from going to an institution “controlled in whole or in part by any church, sect, or denomination.” Three women sued to restore the scholarship, including Kendra Espinoza – a middle-aged single mother who works three jobs, including providing janitorial services, to send her children to Stillwater Christian School, because it reflects her religious values. “For so many other families across America, this will potentially mean changing lives and positively altering the future of thousands of children nationwide,” she said after the ruling.

On Tuesday, the justices ruled that states may not exclude any institution from a public program for which it qualifies merely because it is a religious institution. In so doing, they struck a blow against a 150-year legacy of discrimination against Roman Catholics.

The Blaine Amendments or “no-aid” provisions – which were proposed in the 1870s and subsequently adopted by 37 states – explicitly sought to deny Catholic schools the same funding available to schools that taught Protestant doctrine. The amendments were “born of bigotry,” which is “apparent from the plain text” of the provisions, Roberts wrote. The amendments’ language sought to bar state funding of “sectarian” schools, and “it was an open secret that ‘sectarian’ was code for ‘Catholic.’” And their application in this case violated fundamental rights. Justice Samuel Alito’s concurrence provides an in-depth history of the amendment’s anti-Catholic animus, including its support by the Ku Klux Klan. Anyone opposed to systemic discrimination or structural bigotry should want the Blaine Amendment removed from the legal code root-and-branch.

Proponents of religious liberty hailed the decision. Secretary of Education Betsy DeVos said the ruling consigned “the ‘last acceptable prejudice’ to the dustbin of history.” Alliance Defending Freedom Senior Counsel John Bursch said the court was right not to “allow the dead hand of 19th century anti-Catholic bigotry – which motivated the state constitutional provision at issue here – to put a stranglehold on educational resources desperately needed by parents and their children.” Diana Verm of the Becket Fund called the Blaine Amendment “legally, constitutionally, and morally wrong.” And Katherine Beck Johnson of the Family Research Council said the justices “stepped up to protect people of faith from discrimination and affirmed parental choice.”

The Espinoza ruling also laid down an important marker for future school choice legislation. “A [s]tate need not subsidize private education,” Roberts wrote. “But once a [s]tate decides to do so, it cannot disqualify some private schools solely because they are religious.” If a school such as Stillwater Christian meets the program’s criteria, its affiliation with a church cannot be the sole grounds of exclusion. That could be expected to induce states to adopt broader and more robust school choice programs – something the court already signaled in its 2002 Zelman ruling (which the justices cited, as I predicted).

The decision also affirmed parental rights against the overarching designs of the state educational bureaucracy. Many parents exercise their primary right to educate their children “by sending their children to religious schools, a choice protected by the Constitution,” Roberts wrote. “But the no-aid provision penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.” Secretary DeVos said the ruling “will spark a new beginning of education that focuses first on students and their needs.”

However, the case is far from the final word on religious liberty issues. Roberts highlights the difference between denying a religious institution state funding based on religious status as opposed to religious use. Justices in Trinity Lutheran Church of Columbia, Missouri v. Comer (2017) barred the state of Missouri from excluding a church from a program that would allow it to refurbish its playground, merely because it is a church. However, Roberts this week explicitly affirmed Locke v. Davey (2004), which held that Washington state could deny a student the right to use a state scholarship to earn a theology degree. In the latter case, the state funds would be used to serve religious proselytism, while in the former people of faith merely availed themselves of a program available to the general public. The dissents, particularly that of Justice Ruth Bader Ginsburg, show that the distinction between these remains hotly disputed.

To further muddy the waters, Roberts noted that the Espinoza ruling emerges from the “play in the joints” between the First Amendment’s Free Exercise Clause, which recognizes Americans’ unalienable freedom to live out a religious conviction, and the Establishment Clause, which forbids the government from establishing a state religion. However, as Justice Gorsuch noted in his concurrence, the distinction between belief and practice is not always easily discerned.

Justice Clarence Thomas wrote in his own concurrence (which Gorsuch joined) that his fellow justices hold an “erroneous view of the Establishment Clause,” that “the government must treat all religions equally and treat religion equally to nonreligion.” This view, first codified by Everson v. Board of Education of the Township of Ewing (1947), has at times led educators to remove America’s religious heritage from public schools’ curriculum – and given students an inadequate understanding of the indissoluble connection between religion and liberty. “Until we correct course on that interpretation, individuals will continue to face needless obstacles” to realizing “their religious freedom.”

At the same time, the court’s liberal bloc believes politicians have not gone far enough to segregate religion from the public square. Justice Sonia Sotomayor wrote that the court should give politicians “some room to recognize the unique status of religious entities and to single them out on that basis for exclusion” from public benefits. Meanwhile, Justice Stephen Breyer endorsed a “flexible, context-specific approach” that “may well vary” from one case to another. “Their ‘room[y]’ or ‘flexible’ approaches to discrimination against religious organizations and observers would mark a significant departure from our free exercise precedents,” Roberts wrote.

They will have powerful allies in the courts of law and public opinion. Teachers unions have already signaled their intention to fight the ruling, which could cost its members millions of dollars in federal tax dollars. National Education Association President Lily Eskelsen García said the Espinoza decision will allow states to “divert already scarce dollars from neighborhood public schools and funnel those funds to private schools,” as part of a nefarious, “far-right effort to undermine one of our country’s most cherished democratic institutions: public education.”

The most discouraging sign for this groundbreaking school choice victory is that it may be on a collision course with another ruling this term: Bostock v. Clayton County.

Neal McCluskey, director of the Center for Educational Freedom at the Cato Institute, has said “the biggest strategy to try to stop school choice” is to demonize “religious schools that have policies that are seen as anti-LGBTQ,” spurring teachers unions and politicians to argue that “that it is immoral to have public funds going to such places.” The majority of evangelical Christian and Catholic parochial schools hold to the teaching that sexual activity outside marriage is sinful, and that marriage is the lifelong union of one man and one woman.

Thanks to Bostock, opponents of school choice will likely argue that funding this view is illegal – and precedent exists for them to prevail. Bob Jones University lost its tax-exempt status for refusing to admit black students or allow interracial dating on campus, in violation of the 1964 Civil Rights Act. The Supreme Court ruled 8-1 that “the [g]overnment has a fundamental, overriding interest in eradicating racial discrimination in education.” With the Bostock opinion reading sexual orientation and transgender identity into the Civil Rights Act of 1964, political allies of the teachers unions may claim that funding schools which adhere to traditional Christian teachings is illegal unless those schools change their practices and violate their deeply-held beliefs. There is strong reason to believe that argument will succeed. What the court giveth, the court too often taketh away.

Yet Justice Gorsuch noted in his Bostock ruling that, to his mind, the outcome of such cases is far from certain. In a term of discouraging SCOTUS decisions, Espinoza gives school choice advocates the hope that the arc of history is long, but ultimately it eradicates anti-religious prejudice rather than reinforcing it.

(Photo credit: Institute for Justice. This photo has been cropped. CC BY 4.0.)

Rev. Ben Johnson

Rev. Ben Johnson is Executive Editor of the Acton Institute's flagship journal Religion & Liberty and edits its transatlantic website.