The race card and Espinoza

On June 30, 2020, the US Supreme Court decided, by a 5-4 margin in Espinoza v. Montana Department of Revenue, that the use of a 19th century policy called the Blaine Amendment, which bars religious schools from participation in a K-12 education program that is open to all public and private schools in the state solely on the basis that it is sectarian, violated the Constitution.

In the case, the Court considered a tax credit program
created by the Montana legislature in 2015 that allowed individuals and
businesses to donate up to $150 to a nonprofit organization to fund a
scholarship for a student to enroll in a public, private, or religious school
of a parent’s choice. Following enactment of the law, the Montana Department of
Revenue passed a new administrative rule that banned everyone from using a tax
credit to defray tuition at a religious school. However, the use of the tax
credit at a public or private, non-religious school was acceptable.

People gather outside the Supreme Court building as the court hears oral arguments in the Espinoza v. Montana Dept. of Revenue case in Washington, U.S., January 22, 2020. REUTERS/Sarah Silbiger

Three low-income Montana mothers — Kendra Espinoza, Jeri
Ellen Anderson, and Jaime Schaefer — filed a lawsuit that argued that enforcement
of the provision restricting religious schools from the program violated their
rights under the Constitution’s religious freedom and equal protection doctrines.
A district court ruled in favor of the mothers in 2017.

On December 12,
2018, the Montana Supreme Court reversed the decision of the lower court in a
5-2 decision and dismantled the entire tax credit program. This resulted in public,
private, and religious schools being ineligible to receive a tax-credit
funded scholarship to pay tuition at any school in Montana. This was because funding
a religious school with public money violated the state constitution’s ban on
such practices.

The moms appealed
the decision to the Supreme Court in 2019, and five justices sided with them. This
historic decision could affect change in the 37 states with a Blaine Amendment
in their constitution and nudge states with existing tax credit programs. Time
will tell.

Although Espinoza is a decision about school resources, it is the Court’s latest step in a centuries-long journey to wash away the stain of religious discrimination in K-12 education. However, another factor is brewing beneath the surface of Supreme Court decisions where parental choice and public money are at play: race.

The
ACLU, People for the American Way, the NAACP, Americans United for Separation
of Church and State, and teachers’ unions played the race card to derail the early effort of the Milwaukee
Parental Choice Program (MPCP) during the 1990s. To them, a private school choice
program is publicly-financed racial segregation. However, this did not work — the
Wisconsin Supreme Court upheld the constitutionality of the MPCP. A similar
claim was used in an attempt to shut down a voucher program for low-income,
mostly black students in Cleveland. In 2002, the US Supreme Court ruled in favor
of the program in Zelman
v. Simmons‐​Harris
for
reasons other than race alone. Now that the Court ruled in favor of another
parental choice program where the plaintiffs are white children, we can still expect
a new round of racial discrimination claims to follow.

However,
proponents of tax credits should not brush off the claims of racism so easily. After
all, public money has supported racial discrimination in private schools in the
past.   

After the Supreme Court’s 1954 decision in Brown v.
Board of Education
, several governors,
state lawmakers, and school boards throughout the southern United States supported
a publicly-funded private school scholarship program called a tuition grant. These
grants gave white parents an exit strategy from public school integration, and the
millions of dollars state legislatures invested into these programs enabled a meteoric
rise in white segregation academies. These blossomed during an era I call “fear-​based”
freedom of choice during the 1950s-1960s. Fortunately, the federal courts struck
down those state laws.

With the creation of publicly-funded freedom of choice private school programs during the 1990s, choice opponents have used the “fear-based” model to argue against vouchers, and there is no reason to expect different for tax credit programs. This is a battle that will be fought in both the courtroom and the court of public opinion. The nuanced debates about “fear-based” and what I call “liberty-based” choice were explored in a conference I organized at AEI in 2016.

No matter what,
opponents of Espinoza will call tax-credit funded schools “havens of
hate” or “privatization schemes,” despite the fact that 30 years of private
school choice programs have not culminated in the religious or racial
Armageddon anti-school-choice organizations predicted. This is not to say tax
credit or voucher programs are free of discrimination, because they are not.
Like public schools, there is always room for growth to address discrimination
in our learning ecosystems.

However, no matter what anyone says, Espinoza is a victory for millions of families, students, and taxpayers of all religious and racial backgrounds.

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