School Choice and Separation of Church and State

A lawsuit over K-12 scholarships has sparked a battle over the religion clauses of the Constitution.

The Supreme Court heard that dispute - Espinoza v. Montana Department of Revenue – on January 22, 2020, and two advocates who have worked on and written about the case discussed it on last week’s episode of our We the People podcast. Michael Bindas of Institute for Justice – the organization representing parents who hoped to get scholarships for their children – and Alice O’Brien of National Education Association – an organization that advocates for public schools – joined host Jeffrey Rosen. 

Bindas and O’Brien disagreed on the central question of the case: whether it was constitutional for Montana to end a tax-credit program that funded scholarships for private schools – some religiously affiliated and some not. 

Bindas argued emphatically that it was unconstitutional. “The reason the court invalidated the program is because of religion,” he said. “And we [at Institute for Justice] certainly believe that the Free Exercise Clause prohibits [the] government from withholding or denying a benefit on the basis of religion.”

The Free Exercise Clause in the Constitution’s First Amendment guarantees that Congress “shall make no law... prohibiting the free exercise” of religion. In practice, that means the government may not compel or punish religious beliefs or, with some exceptions, religious practice.

O’Brien asserted that Montana’s decision to end the program did not infringe on free exercise; rather, she believed Montana rightfully enforced the provision in its state constitution that bars funding of religious schools.

 “A state should be able to make the choice that they are not going to fund religious education ... in order to maintain separation of church and state as set forth in their state constitutional document,” she said.

The Montana program in question gave a tax credit up to $150 to taxpayers who donated to organizations that in turn funded scholarships that parents could use to send their children to private schools of their choosing, including religious schools. Based on a provision in the state’s constitution, the Montana Department of Revenue barred scholarships from being used toward religious schools. That decision was then appealed to the Montana Supreme Court, which held that the program violated the state constitution and decided, instead, to end the entire program. Now, the U.S. Supreme Court is considering whether that decision to end the program violated the U.S. Constitution.

The Supreme Court is also considering whether those parents who are no longer receiving scholarships had the ability, otherwise known as “standing,” to bring the lawsuit.  A party typically has standing to sue if they’ve sustained or will sustain direct injury or harm.

O’Brien argued that the parents do not have standing because they are not directly being denied scholarship funds; rather, the organizations that give out the scholarships are no longer obtaining money from the tax credit, but they can continue to give out scholarships as they see fit. The organizations are not a party to the lawsuit, she noted.

Bindas argued that the parents were harmed and do have standing. 

“Parents in Montana were denied scholarships based on religion, and they continue to be denied scholarships based on religion,” he said

Bindas and O’Brien also debated the relevance of other Supreme Court precedent including Trinity Lutheran Church of Columbia, Inc. v. Comer (2017) and Zelman v. Simmons-Harris (2002)

Bindas’s organization, the Institute for Justice, represented families in the Zelman case. The Court held that those families were permitted to use vouchers, essentially state funding for tuition, to attend religious schools. The Court upheld the Ohio voucher program with a 5-4 vote, ruling that because it was neutral with respect to religion and allowed individuals to make their own private choice about whether to attend a religious or nonreligious school, it did not violate the Establishment Clause.

“As long as those two things are clear . . . there is no federal constitutional impediment to school choice programs, including school choice programs with religious options,” Bindas said.

O’Brien resisted the notion that Zelman is relevant to Espinoza. She said that Zelman asked whether the Establishment Clause permits states to make the choice to have a voucher program that includes religious schools, but in Espinoza, petitioners want the Court to force Montana to restart a now-defunct program.

 “Here, what the petitioners are seeking is a ruling that the federal constitution requires, requires, mandates that a state fund religious schools, and that it do so even if it’s thrown up its hands and said, as Montana has done here, ‘We're not going to fund religious schools because our state constitution prohibits it, and because we believe there are substantial constitutional problems with having a program that funds private schools but doesn't fund religious schools. So we're not going to have a program at all,’” she said.

 O’Brien also contrasted Espinoza with Trinity Lutheran, saying it’s “entirely unlike” Trinity Lutheran and “not decided at all by that decision.”

She pointed to a footnote in the Trinity Lutheran decision that states that the holding only applies narrowly to the type of grant at issue in that case — funding for playground resurfacing.

In Trinity Lutheran, the Supreme Court held that Missouri’s exclusion of religious entities from a secular and otherwise neutral grant program violated the Free Exercise Clause of the First Amendment. In a 7-2 decision, the Court ruled that Missouri was unconstitutionally denying a church an otherwise available public benefit on account of its religious status.

Bindas countered that in Trinity Lutheran, Missouri made many of the same arguments that Montana has made in Espinoza, and the Court rejected them.

“We expect the court to apply that case, Trinity Lutheran, and come to the same conclusion here,” he said

O’Brien and Bindas also debated whether Montana’s state constitutional provision should be called a “Blaine Amendment,” as Bindas repeatedly referred to it.

The term “Blaine Amendments” refers to a series of amendments to state constitutions passed in the late nineteenth century that aimed to prevent the use of public funds to support parochial schools and religious institutions. They were named for Representative James G.  Blaine, the Republican House minority leader who spearheaded the movement.

Bindas said that the Supreme Court has “acknowledged” that such provisions, even those passed more recently “are relics of anti-Catholic bigotry.”

 Noting that the Montana state constitutional provision at issue was passed in 1972 during the state constitutional convention, O’Brien said it is more accurately referred to as a “no-aid provision.”

She said it was adopted “with the support of faith leaders across the state, including the Montana Catholic conference” advocating for “the separation of church and state and the need for the protection of religious organizations to make sure that the government played no part in funding or aiding religion."

The Supreme Court’s decision in Espinoza v. Montana Department of Revenue is expected by late June.

Jackie McDermott is Podcast Producer and Constitutional Content Specialist at the National Constitution Center.