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Justices Return To (Parochial) School

Kalispell, Montana.
Kalispell, Mont., the location of the school at issue in Espinoza v. Montana Department of Revenue. Photo by Dan Petesch.

The U.S. Supreme Court has announced it will go back to school this fall – or, more specifically, that it will revisit the place of parochial schools in the school choice debate.

Espinoza v. Montana Department of Revenue centers on a Montana law that established a system in which families who send their children to private schools could receive financial support from certain nonprofit scholarship funds. Donors who contributed to these funds – or rather, fund, since only one such organization has been formed in Montana – could claim a state tax credit. But because of a provision in Montana’s constitution, the state’s Revenue Department barred students at religious schools from accessing these scholarship funds. Parents initially succeeded in challenging this system, until the Montana Supreme Court struck down the entire program in 2018. The U.S. Supreme Court will weigh in during its next term, which begins in October.

This case will allow the court to address a pair of issues. First, does the duty to provide a publicly funded education require a publicly run education system? While support for publicly funded education is nearly universal, how that system should be governed is more controversial. The educational establishment, and many Democrats, assert that a publicly funded system requires government-run public schools, and that any diversion of taxpayer support to secular or religious alternatives is a threat to public education itself. But many other citizens believe that the government should give parents and the marketplace the final word, using mechanisms such as charter schools and vouchers. Reasonable people can disagree. This is a policy question, not a constitutional one, at least at the federal level. So far, the legislative branch and state-level courts have been the ones to address this dispute.

There is, however, a constitutional issue at play in Espinoza. The Bill of Rights guarantees religious freedom in the establishment clause and the free exercise clause of the First Amendment. But courts have disagreed on what such a guarantee means in context. Does the Constitution prohibit any financial interaction with religion on the government’s part? Or does it merely guarantee that individual citizens may practice or refrain from practicing whatever religion they choose while the government behaves neutrally with respect to those choices?

This case is not the first in which the Supreme Court has addressed this question. In the 2000 case Mitchell v. Helms, the high court established that religiously affiliated private schools may receive government aid without violating the establishment clause. Writing for the plurality, Justice Clarence Thomas observed, “"[i]f the religious, irreligious, and areligious are all alike eligible for governmental aid, no one would conclude that any indoctrination that any particular recipient conducts has been done at the behest of the government.”

Seventeen years later, the court considered a similar issue in Trinity Lutheran v. Comer. Trinity operates a preschool and daycare with an open admissions policy. That preschool applied for a grant from the Missouri Department of Natural Resources, which would let it buy recycled tires to resurface its playground. The department denied the application because of the preschool’s affiliation with a church. In a 7-2 decision, the court found that the department could not exclude an otherwise eligible organization because of its affiliation with a religious institution.

Yet as I observed in 2017, the court’s earlier decision in Mitchell was inconclusive. While five justices determined that a Louisiana school-aid program could not be denied to parochial schools while it remained available to everyone else, only three justices in that case were prepared to say that neutrality alone was sufficient. Espinoza could provide a court that is now more conservative with a chance to make a definitive statement on that question, building on the parallel conclusion the court reached in Trinity Lutheran.

Montana’s 2015 school choice program ran afoul of the state’s Blaine Amendment – a provision that stipulates no public funds can go to a sectarian organization, directly or indirectly. Such a provision takes its name from a 19th century congressman, Rep. James G. Blaine, who proposed a federal constitutional amendment to this effect. While the federal constitutional amendment failed, 37 states adopted similar provisions. These amendments were often explicitly meant to hamper or even stamp out Catholic schools. Montana’s version dates to 1889, when the state adopted its first constitution upon admission to the Union. The provision was kept in largely the same form when Montana drafted a new constitution in 1972.

In a 5-2 decision, Montana’s Supreme Court went beyond ruling that the scholarship program must be available to students at religious schools, as the parents wanted, or that the Revenue Department was correct to strike those schools from the program. Citing state constitutional grounds and procedural requirements, it said the Revenue Department lacked authority to rewrite the statute to exclude otherwise qualified religious schools. The court then proceeded to invalidate the entire law. Thus, even if the U.S. Supreme Court determines that the Revenue Department violated the plaintiffs’ religious rights, there may be no Montana scholarship program through which to provide them a remedy. Since this is the result that defenders of public school systems prefer, I feel safe in concluding that this is not an accident.

Under these circumstances, it seems surprising that the Supreme Court took up this case at all. That it did so implies that at least four justices (the minimum needed to grant certiorari) want to take a look at how the Montana Revenue Department ruled. They also probably want to examine the state’s application of its own constitutional strictures against government support of religious organizations.

If parents who want to send their children to religious schools cannot not access Montana’s program because the schools in question are religious institutions (open to people of any faith or none), what would prevent a future Congress from denying federal student loans and other funding to institutions like Georgetown University, the University of Notre Dame or Yeshiva University? How would such funding survive a constitutional challenge by, say, an atheist organization aggrieved at the use of taxpayer dollars in support of a religious school?

Our entire constitutional history has supported the premise that the government is neutral, not hostile, toward religion. We grant income tax exemptions to churches, regardless of their theology or the size of their congregations. We provide police, fire, sanitation and many other services to religious property on the same basis as other property, even when that property is exempt from local taxes – a clear subsidy, but one offered to all faiths equally. The military services provide chaplains. We open the Supreme Court’s arguments by invoking God to save the United States of America and “this honorable court.” The list goes on.

Could an institution whose sole or primary purpose is religious indoctrination try to support itself by calling itself a school and accepting vouchers awarded to its congregant families? Yes. Would this create a constitutional problem? Probably. But there are available solutions that stop far short of Montana’s. Setting secular instructional standards that are equally applicable to religious and secular schools – essentially an accreditation process – would probably suffice to cure any First Amendment defect. The Montana Legislature essentially did that, before the Department of Revenue determined that religious schools could not constitutionally qualify to participate, regardless of the statute. Alternatively, we could require that schools offer any religious instruction or observance at times outside the normal school day, with staff compensated for those hours other than through public funds.

If the goal of public education spending is to educate kids – not just to provide jobs for staff at public schools – then there is little policy justification to exclude financially and educationally efficient religious schools. It doesn’t strike me that there is much constitutional basis to exclude them, either. Espinoza may prove to be the case that elicits a clear answer from the Supreme Court.

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