On Tuesday, by 5-4, the Supreme Court delivered a landmark victory for school choice. In Espinoza v. Montana Department of Revenue, the Court ruled that state tax credit scholarship programs may not exclude religious private schools from participation.
The case concerned Montana’s tax credit scholarship program, established in 2015, which provides tax incentives for individuals or corporations to donate to privately managed scholarship organizations, which select scholarship recipients and distribute funds. Shortly after the program was established, Montana’s Department of Revenue ruled that students could not use the scholarships to attend religious private schools, due to a clause in the state’s constitution that forbids government funds from being used for “any sectarian purpose or to aid” any school “controlled in whole or in part by any church, sect or denomination.”
That constitutional clause is known as a Blaine amendment. During the late 1800s, a wave of anti-Catholic sentiment led House Speaker James G. Blaine to attempt to outlaw any state support for “sectarian” (meaning “Catholic”) education. While no such federal legislation ever passed, 37 states (including Montana) currently have Blaine amendments.
Opponents of school choice have long used Blaine-amendment language as a cudgel with which to attack voucher programs, tax-credit scholarships, and education-savings accounts. In just the past five years, Blaine amendments have been used to challenge the constitutionality of school choice programs in Alabama, Georgia, Oklahoma, and Colorado.
While Tuesday’s court ruling doesn’t explicitly strike down Blaine amendments, it does indicate that the Constitution’s free exercise of religion clause prevents states from treating religious education groups differently from secular ones, which would strike at the heart of Blaine’s intended purpose. As Chief Justice John Roberts wrote in the majority opinion, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
This ruling shouldn’t be a surprise — the Court has spent years challenging the discriminatory principles embedded in Blaine amendments. In 2002, the US Supreme Court ruled in Zelman v. Simmons-Harris that voucher programs that include religious schools do not violate the First Amendment’s establishment clause. In the 2017 case Trinity Lutheran Church of Columbia, Inc. v. Comer, the Court held that Missouri violated the First Amendment’s free-exercise clause when it prohibited a church from receiving public funds for playground improvement “solely because of their religious character.” Although a footnote in the Trinity Lutheran case attempted to limit the case’s scope to just the benefit of playground resurfacing, the Espinoza case prohibits states from denying religious providers from accessing “otherwise available benefits.”
It remains to be seen how exactly courts will apply Tuesday’s decision going forward. One interesting question this throws wide open is whether courts will interpret this as either making permissible or even requiring states to allow religious charter schools. Regardless of how such questions are ultimately settled, the Espinoza ruling is welcome news for those who believe that parents should have greater freedom to choose education options that they deem right for their child.