John Kramer
John Kramer · April 29, 2019

Arlington, VirginiaMore than a dozen individuals and institutions have called on the U.S. Supreme Court to hear a case filed by the Institute for Justice in which the Montana Supreme Court ruled the state must discriminate against parents who select religious schools for their children.

The justices are expected to decide this summer whether to hear Espinoza v. Montana Department of Revenue, a case in which the Montana Supreme Court ruled that the Montana Constitution’s “Blaine Amendment” requires the wholesale exclusion of religious options from school choice programs. The case could impact tens of thousands of low- and moderate-income families who wish to participate in similar school choice or scholarship programs across the nation.

“It is a bedrock principle of federal constitutional law that the government cannot show hostility toward religion,” said Erica Smith, an attorney with the Institute for Justice, which represents the families in this case. “Yet for the past 24 years, since the modern school choice movement began, some states have blocked scholarship recipients from choosing religious schools. It is time for the U.S. Supreme Court to settle this issue once and for all.”

Among the friend-of-the-court (or amicus) briefs that called on the Court to take up Espinoza and reverse the Montana ruling were those by:

IJ Senior Attorney Michael Bindas said, “Montana’s Blaine Amendment dates back to 1889 and was designed to discriminate against Catholic schools and students at a time of widespread hostility toward Catholics, both in Montana and throughout the country. By applying it to bar religious options from modern school choice programs, the Montana Supreme Court has transformed this relic of nineteenth-century, anti-Catholic bigotry into an engine of animus against anyone who might choose to attend a religious school.”

Among those impacted by the decision is Kendra Espinoza. Kendra, a single mother, pulled her children out of her public school after realizing it was not a healthy environment for her daughters, socially or academically. Kendra enrolled them in a private Christian school, and took on a second job cleaning houses to pay the tuition. Her daughters thrived at school, but Kendra struggled to make the tuition payments. Kendra was counting on the scholarships to help her continue to keep her daughters at their school.

“The Montana Supreme Court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships,” said Kendra. “For the benefit of families across the state, and the nation, we hope the U.S. Supreme Court accepts this case and restores this program to families that need them to ensure their children have access to a good, safe and meaningful education.”

During the past 24 years, a conflict over whether religious options may be barred from educational choice and other student-aid programs has split the federal circuits and state courts of last resort. On one side, the 6th, 7th, 8th, and 10th U.S. Circuit Courts of Appeal, along with the New Mexico Supreme Court, hold that government may not—consistent with the federal Constitution—prohibit religious options in student-aid programs. On the other side, the 1st and 9th U.S. Circuits, as well as the Maine and Vermont Supreme Courts, hold that it may. With the decision in this case, the Montana Supreme Court joined the second group and further deepened the schism.

“The only way to resolve the split is for the Supreme Court to grant certiorari in another school choice case,” said Institute for Justice Senior Attorney Tim Keller. “The lower courts cannot resolve this issue on their own. And every year the split continues, it deprives thousands of children of educational opportunities.”

“Resolving this issue will allow children whose parents enroll them in religious school to legally participate in educational choice programs, and also bring much-needed clarity to state and local governments who wish to enact such programs,” Smith said.

Scott Bullock, the Institute for Justice’s president and general counsel, said, “Under the current legal landscape, whether a child attending a religious school is permitted to participate in a school choice program is based solely on the state or federal circuit within which that child happens to reside. No child should be denied educational opportunity simply because of geography. Now is the time for the Supreme Court to decide this issue.”

The Institute for Justice has successfully defended school choice programs nationwide, including twice before the U.S. Supreme Court. IJ is currently litigating another school choice case in Maine, a student aid case in Washington, and recently won a school choice victory before the Supreme Court of Puerto Rico.