Tim Keller
Tim Keller
 ·  July 21, 2020

In June, IJ won our third victory at the U.S. Supreme Court for parents seeking to choose the best education for their children. In a 5–4 ruling in Espinoza v. Montana Department of Revenue, the Court stated definitively that the U.S. Constitution does not allow states to exclude religious schools from generally available educational choice programs. As Chief Justice John Roberts writes in the majority opinion:

[The U.S. Constitution] condemns discrimination against religious schools and the families whose children attend them. . . . [T]heir exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.”

This decision reinstates the Montana tax-credit scholarship program that is a lifeline to parents like IJ client and single mother Kendra Espinoza. Kendra will again be able to apply for scholarships through the program with the renewed hope of keeping her two daughters in the small Christian school where they are flourishing.

But the implications of this ruling go far beyond Montana. Through Espinoza, the Supreme Court dismantled the biggest legal obstacle preventing the spread of educational choice nationwide: state Blaine Amendments.

For as long as educational choice programs have given families an alternative to failing government schools, teachers’ unions and their allies have invoked Blaine provisions to limit that choice and to preserve their monopoly. They claim that allowing parents who participate in choice programs to choose religious options for their children constitutes state funding of religious institutions—which Blaine provisions forbid. The Montana Supreme Court adopted similar logic when, in December 2018, it struck down the state’s entire choice program simply because parents could choose religious schools for their children.

Not only did this decision discriminate against religious schools and the families who choose them, it ignored the role that parental choice plays in the program. As the Supreme Court majority put it in Espinoza, “[G]overnment support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.” With this victory, the Montana Supreme Court’s flawed reasoning is now permanently overruled.

Espinoza is the successful culmination of three decades of strategic litigation by IJ. Now comes the exciting work of leveraging this ruling to ensure it has the maximum positive impact for parents and children. IJ is moving quickly to provide recommendations and legal guidance to help state policymakers expand educational opportunities in the post-Espinoza world—especially in states where Blaine Amendments have previously made choice programs a nonstarter. Our goal is to foster competition and innovation in the educational marketplace and improve the quality of education for all students in schools that their families—not the government—choose.

The opportunity to get a decent education is often the difference between a life of tragedy and a life of hope. With three ongoing cases and momentum from Espinoza, IJ plans to extend this life-changing opportunity to hundreds of thousands of students in the years ahead.

Tim Keller is an IJ senior attorney.

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