Giving Parents a Choice Is Not What You Think It Means

Anthony Sanders · June 11, 2020

Over the years we at the Center for Judicial Engagement have had a constructive back-and-forth with Georgia State University’s professor Eric Segall (we even had him on Short Circuit Live! earlier this year) on all kinds of issues. We can now add school choice to that list. In a piece at Dorf on Law, Professor Segall implores Chief Justice Roberts to rule against the plaintiffs in IJ’s case Espinoza v. Montana Department of Revenue, currently pending at the Supreme Court. He presents a doomsday scenario where ruling for IJ’s clients—parents of children who attend schools of their choice because of a scholarship program—could lead to the invalidation of provisions in 38 state constitutions and threaten to upend programs in “almost 20 states.” There’s a lot that can be said about this case, but I briefly write here to say that this doomsday scenario doesn’t reflect reality. A ruling for the parents in this case would solidify religious liberty and educational choice in many of the 37 states (we actually count only 37 states with those provisions), give others of those states the ability to expand both values, and find a handful of existing state programs (but by no means almost 20 of them) unconstitutional.

First a bit of brief background. A few years ago, the Montana Legislature adopted a program where taxpayers could receive a very modest tax credit (no more than $150) for contributions to a scholarship fund that then, in turn, could contribute that money to parents. Those parents could then use that money to help them send their children to private school. That school could be of whatever kind they choose, religious or secular. As with all school choice programs—which the Supreme Court already has found constitutional in Zelman v. Simmons-Harris (2002)—the aid does not go to the school; it goes to the parents, who freely and independently decide where to use it. In implementing the program, however, the Montana Department of Revenue stated that if it administered the program as the Legislature actually wanted, that would violate the state constitution’s “Blaine Amendment.” As IJ has educated the courts and the public for years, Blaine Amendments are variously worded—and interpreted—provisions with a sordid anti-Catholic history that in some way (it varies on the wording and interpretation) prevents state funds from going to religious entities.

State high courts have interpreted Blaine Amendments many, many times. And in a lot of these cases the courts have considered the constitutionality of school choice programs where tax credits or public funds were given to parents who, in turn, could use those dollars for tuition at private schools, including religious schools. In many of those cases (almost all of which IJ has litigated), the courts have held that that was permissible under the relevant Blaine Amendment. Thus, those Blaine Amendments (“good Blaine states” we call them) are not at issue in Espinoza. The “doomsday scenario” of increased school choice can’t happen because school choice already has happened or can happen. State legislatures and state high courts decided to read their state constitutions to not countenance religious discrimination in the first place.

Those states are represented on this map in green, plus other states where the legal status of school choice programs is evident from similar legal rulings that didn’t directly address them:

If you’re counting, there are 16 states with Blaine Amendments where state legislatures either already do, or at least could, have school choice programs. A ruling in Espinoza for the plaintiffs will do nothing to those interpretations.

For the “mixed” states it’s a “mixed bag.” But some of these states have school choice programs already where parents receive support, directly from the state or through tax-credited scholarships, that they can use for private secular or religious options for their kids in K-12 education. For example, that’s the case in Florida.

That leaves the states in red, including Montana. One of them, Missouri, already had its Blaine Amendment found unconstitutional in the context of direct aid to churches, in the Trinity Lutheran case that Professor Segall mentions. Would it really be that revolutionary for that precedent to be extended to aid to parents who then can choose, or not choose, a school tied to a church? Thus, Missouri and a few of those “red” states’ constitutions, as they have been interpreted, could become ineffective as a way to block future school choice programs. But not for all. For example, Michigan’s Blaine Amendment doesn’t allow support for any private schools: “No public monies or property shall be appropriated or paid or any public credit utilized, by the legislature or any other political subdivision or agency of the state directly or indirectly to aid or maintain any private, denominational or other nonpublic, preelementary, elementary, or secondary school.”

At the end of the day, a Supreme Court ruling that endangers future applications of laws in a few states to a few programs is hardly radical. Supreme Court rulings that directly bar laws in multiple states to current policies are not uncommon (think of the invalidations of same-sex marriage laws, flag burning laws, warrantless inspection ordinances, and durational residency requirements, to name a few) and are hardly the cataclysm that Professor Segall fears.

Finally, he states that programs in “almost 20 states” currently provide aid to only secular private schools and that those programs would be in danger in their current form if IJ’s clients win at the Supreme Court. I wish that were true! However, we at IJ have no clue what programs he’s talking about. Maine and Vermont have programs like that, and IJ is currently challenging Maine’s in the First Circuit (a case that does not concern a Blaine Amendment, because Maine doesn’t have one). Washington State had a program that applied to college work study with religious entities (such as hospitals or soup kitchens), but it fixed it after IJ filed suit. Idaho has a similar program. Minnesota has a program subsidizing child care for college students with kids that excludes those who go to a college requiring students to sign a “statement of faith.” But that’s about it. And even if there are a few more, is making sure college students who go to a certain type of religious school get a small amount of assistance when their colleagues at other private schools already do a sign of the end times? No, it’s a sign that our judiciary is enforcing the Constitution. Which is what the justices should be worried about, not whether they rule in a way that some professors find radical.

Anthony Sanders is the director of IJ’s Center for Judicial Engagement.