September 23, 2019

IJ is heading back to the U.S. Supreme Court this term in our third appearance at the High Court in just one year. This time, we will represent Montana parents and children in a case that is the crescendo of nearly 30 years of strategic litigation by IJ to secure educational choice.

The case, Espinoza v. Montana Department of Revenue, will strike at the heart of the biggest remaining legal obstacle to educational choice: Blaine Amendments. These state constitutional provisions, which ban public funds from aiding “sectarian” or religious schools, worked their way into state constitutions in the late 19th century, not to protect the separation of church and state, but to discriminate against newly arrived Catholics. At the time, both the country and its public schools were predominantly Protestant, and Catholic immigrants fought for funding for their own schools. Blaine Amendments allowed the country’s elites to maintain the status quo by preventing funding for any “sectarian” (read “Catholic”) schools, while allowing public schools to retain their nondenominational Protestantism.

Today, Blaine Amendments are the biggest barriers to educational choice and the teachers’ unions’ favorite tool for attacking choice programs. Although IJ’s landmark Zelman v. Simmons-Harris victory at the U.S. Supreme Court in 2002 established the constitutionality of choice programs under the federal Constitution, choice opponents still use these amendments in state constitutions to challenge programs in both courts and legislatures. Seeking to end the challenge choice programs pose to the public school monopoly, opponents argue that by allowing families who participate in these programs to choose religious schooling, the state is “aiding” religious schools. Their goal: for programs to be restricted—or eliminated altogether.

But as IJ has successfully argued before multiple courts over the past three decades, educational choice benefits families—not schools. No school receives a dime without the free and independent choice of parents picking a school that they believe best meets their child’s individual needs, whether that school is secular or religious. At the same time, depriving parents of educational options solely on the basis of religion violates their First Amendment rights.

IJ now has the opportunity to make this argument before the nation’s highest court. Last year, the Montana Supreme Court became the first state supreme court to rely on a Blaine Amendment to strike down a tax-credit scholarship program. IJ intends to make it the last.

We immediately petitioned the U.S. Supreme Court for review, asking it to rule—once and for all—that invalidating a student aid program simply because it allows students religious options violates the U.S. Constitution.

In June, the Court granted IJ’s request to review the decision, and we will argue the case this winter. A victory will restore educational freedom in Montana, unleash new educational opportunities in more than a dozen other states where Blaine provisions still impede choice programs, and vindicate all parents’ right to give their children the education that is best for them.

To read more on this case visit the Las Vegas Review-Journal article.

Erica Smith is an IJ attorney.

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