Last week, in Espinoza v. Montana Department of Revenue, the Supreme Court held that states cannot exclude religious schools from tax-credit scholarship programs. Parents who want to send their kids to schools that align with their values cannot be shut out of school choice programs, ensuring more educational opportunity for kids around the country.
The Montana legislature created a tax-credit scholarship program in 2015 that would allow families to apply for scholarship funds and use them at any qualified private school. This initially included religious schools, which make up more than two-thirds of private schools in Montana. In order to incentivize donations to the scholarship fund, taxpayers would receive a modest tax credit of $150 per year for their donation. Concerned that this ran afoul of the state constitution’s prohibition on public funds aiding church-run schools — known as a “no-aid provision” — the Montana Department of Revenue implemented a rule excluding religious schools from the program.
Families that counted on scholarships challenged this decision in state court, arguing it violated the Free Exercise Clause of the U.S. Constitution. In a head-scratching ruling, the Montana Supreme Court threw out the entire scholarship program. With the help of the Institute for Justice, those families took their case to the U.S. Supreme Court, which reversed that ruling and reaffirmed the rights of parents to direct their kids’ education.
In a 5-4 decision, Chief Justice John Roberts determined that the state court’s ruling was subject to the highest level of scrutiny. In finding that the no-aid provision barred the use of funds at religious schools, the state court violated the Free Exercise Clause by imposing “special disabilities on the basis of religious status.” When “otherwise eligible recipients are disqualified from a public benefit,” Roberts wrote, “solely because of their religious character,” strict scrutiny applies.
This followed from past cases, including the 2017 Trinity Lutheran Church v. Comer ruling that a state could not discriminate against a church-run daycare center that applied for a public grant to resurface its playground. Roberts explained that although states are not required to subsidize private education, “once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” Montana’s no-aid provision “penalize[d]” some parents’ educational choices 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.” Such blatant discrimination is “odious to our Constitution” and “cannot stand.”
This is welcome news for families across the country — but especially in the 38 states that have no-aid provisions enshrined in their constitutions or statutes. Now, these antiquated laws no longer can be used to erect barriers to school-choice initiatives. The Espinoza ruling will empower parents to set the course of their kids’ schooling.
As attorneys at Pacific Legal Foundation explained in a friend-of-the-court brief, Espinoza will have an outsized impact on kids from disadvantaged communities. School choice initiatives such as vouchers, education savings accounts, and scholarship tax credits are designed to offer lower-income families the ability to afford private school tuition.
Indeed, many such programs specifically target vulnerable and disadvantaged students. Some focus on providing an escape hatch for victims of bullying, while others focus on enrolling students living near failing schools, students with special needs, or students living below certain income thresholds. Unsurprisingly, disadvantaged families overwhelmingly support these programs.
Studies show kids in school choice programs fare better than their public-school peers, with higher test scores, high school graduation rates, and college enrollment rates. They also tend to rise above many problems that plague disadvantaged populations — such as teen pregnancy and incarceration. Instead of forcing parents to rely on failing neighborhood schools, school choice programs such as tax-credit scholarships, school vouchers, and education savings accounts provide a lifeline to parents seeking out an education tailored to their kids’ unique needs.
The vast majority of private schools in the United States are religiously affiliated. Thanks to Espinoza, parents will have more options when it comes to directing their kids’ education—whether at secular or religious schools.
Elizabeth Slattery is a senior legal fellow and deputy director of Pacific Legal Foundation’s Center for the Separation of Powers.
Ethan Blevins is an attorney with Pacific Legal Foundation, where he litigates nationwide to achieve court victories enforcing the Constitution’s guarantee of individual liberty.