John Kramer
John Kramer · July 7, 2020

Arlington, Virginia—After last week’s landmark U.S. Supreme Court ruling in Espinoza v. Montana Department of Revenue, which held that it is unconstitutional to exclude religious schools from private educational choice programs, the Institute for Justice (IJ), which litigated the Espinoza case on behalf of parents, released a 50-state guide to help policymakers in each state better understand the impact of Espinoza in their state. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

“As a result of Espinoza, nearly every state is now free to enact programs that will empower parents to choose the educational environment that works best for their own children, whether those options are public, private or religious,” said IJ Senior Attorney Tim Keller. “This new guide helps policymakers understand how this momentous decision clears the way for robust educational choice programs with the ability to spur the creation of a greater number of educational opportunities for students.”

In Espinoza, the Supreme Court ruled that the Montana Supreme Court violated the federal Constitution when it relied on its state Blaine Amendment to invalidate a tax-credit scholarship program solely because parents could use their scholarships to send their children to religious schools. As Chief Justice John Roberts wrote, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.” The Espinoza ruling builds on previous Supreme Court decisions that hold that when a government enacts a scholarship program, the benefits only go to schools through the free and independent choices of students and parents. As the Court explained, “[G]overnment support makes its way to religious schools only as a result of Montanans independently choosing to spend their scholarships at such schools.”

“It is important to note in the context of Espinoza and earlier school choice U.S. Supreme Court rulings, not one dollar of funds may be spent for a child’s education in a religious school but for the private and independent choice of a parent,” said Keller. “The funds used in school choice programs are used to secure a quality education for each child, not to subsidize any school. This is not the government subsidizing religious schools; choice programs are about giving mostly low-income families access to a high-quality education they could not otherwise afford.”

With this ruling, the Court sharply limits the application of the 37 state Blaine Amendments and ensures that no state, whether it has a Blaine Amendment or not, can exclude parents from choosing religious educational options just because they participate in a private educational choice program. The U.S. Constitution, the Chief Justice wrote, “condemns discrimination against religious schools and the families whose children attend them. They are ‘member[s] of the community too,’ and their exclusion from the scholarship program [in Montana] is ‘odious to our Constitution’ and ‘cannot stand.’”

Although 20 states have already interpreted their Blaine Amendments to allow parents to select religious schools as part of a choice program, most of the remaining 15 states can no longer rely on their Blaine Amendments to prevent parents from choosing the best school for their children. (Two states—Massachusetts and Michigan—will be unaffected by Espinoza).

The IJ guide analyzes each state and provides advice and includes links to model legislation for policymakers who are interested in expanding educational choice in their state.

“This decision is a great opportunity for supporters of educational choice,” said IJ Educational Choice Attorney David Hodges. “We are looking forward to working with policymakers nationwide to enact programs that ensure that no matter where children live or how much money their parents have, they can get access to a good education.”