In a huge win for backers of school choice including Education Secretary Betsy DeVos, the Supreme Court on Tuesday sided with three Montana families who asked the court to declare that excluding religious schools from student aid programs is unconstitutional.
The case, which has drawn intense interest from the Trump administration, could have major implications for the use of public dollars to pay for religious schools.
Espinoza v. Montana Department of Revenue looked at whether the Montana Supreme Court violated the U.S. Constitution when it struck down a tax-credit scholarship program that allowed students to attend private schools, including religious schools.
The Montana court ruled in 2018 that the program violated a state constitutional “No-Aid Clause” that banned the legislature from spending public funds to aid religious schools. The provisions, in nearly 40 states, are also known as “Blaine Amendments.”
Justices held that the application of Montana's “no-aid provision” discriminated against religious schools and families whose children attend or hope to attend them in violation of the Free Exercise Clause of the U.S. Constitution. Supreme Court Chief Justice John Roberts wrote for the majority in the 5-4 decision.
Proponents of school choice said it was a major triumph in the courts. “The weight that this monumental decision carries is immense, as it’s an extraordinary victory for student achievement, parental control, equality in educational opportunities, and First Amendment rights,” said Jeanne Allen, the founder and chief executive of the Center for Education Reform.
DeVos, a strong proponent of school choice programs who attended the arguments, recently said she hopes the Supreme Court will strike down so-called Blaine Amendments that she said are rooted in “anti-Catholic” bias.
“We are very hopeful that that is going to be struck down and that people of faith are going to be able to pursue their education equally and as respected as any other individual and any other school,” DeVos said during a May 19 interview on SiriusXM’s Catholic Channel radio station.
Adam Unikowsky, who argued for the Montana Department of Revenue, however, said during arguments in January that the state constitution’s “No-Aid Clause” protects religious freedom from governmental interference.
The Institute for Justice, a libertarian law firm based in Arlington, Va., pushing school-choice expansion in the courts, represents the Montana families. A lawyer from the solicitor general’s office also argued in support of the families, saying Montana’s constitutional provision is “inconsistent with and preempted by the federal free-exercise clause.”
In Zelman v. Simmons-Harris, the Supreme Court decided in 2002 that the U.S. Constitution allows states to include religious schools in a school choice program. The question in the Espinoza case was whether it’s permissible for states to exclude them, according to Erica Smith, an Institute for Justice lawyer who is lead co-counsel for the Montana families.
School choice advocates were optimistic because of a 7-2 Supreme Court ruling in Trinity Lutheran Church of Columbia Inc. v. Comer that held Missouri had wrongly denied a church a state grant to rebuild its playground “simply because of what it is — a church.” But a plurality added a footnote that appeared to try to limit the ruling, suggesting it doesn’t address religious uses of funding or other forms of discrimination.