John Kramer
John Kramer · June 28, 2019

Arlington, Virginia—The U.S. Supreme Court announced today it will hear an appeal of the most important school choice case in the nation—a case in which the Montana Supreme Court ruled the government must exclude religious options for parents who want to participate in a generally available tax-credit scholarship program. The case, Espinoza v. Montana Department of Revenue, which is being litigated by the Virginia-based Institute for Justice, has the potential to impact tens of thousands of low- and moderate-income families nationwide.

Nearly 30 states and the District of Columbia currently give parents a full range of educational choice—including religious options—through various school choice programs. In 2015, the Montana Legislature, likewise, enacted a scholarship program that provides a modest tax credit (up to $150 annually) to individuals and businesses who donate to private scholarship organizations. Those scholarship organizations could then use the donations to give scholarships to needy families who want to send their children to private schools, including religious schools.

Soon after the program’s passage, however, the Montana Department of Revenue enacted an administrative rule that prohibited participants from using their scholarships at religious schools. The Department claimed that the “Blaine Amendment” of the Montana Constitution required the exclusion of religious options. In 2018, the Montana Supreme Court agreed with the Department’s view but took it one step further: In a 5-2 ruling, the court invalidated the entire scholarship program simply because it afforded parents and students the choice of religious schools. Families who wish to use the scholarships at religious schools challenged the decision as a violation of their free exercise rights under the First Amendment.

“Although the U.S. Supreme Court held that including religious options in educational choice programs is perfectly permissible under the federal Constitution, the lower courts have disagreed for decades about whether states may nevertheless exclude religious options in these programs,” said Erica Smith, an attorney with the Institute for Justice (IJ).  IJ represents the families in the case. “We hope the Court will clarify that just as the government cannot force families participating in these programs to choose a religious school, the government also cannot ban these families from choosing a religious school. The First Amendment requires government neutrality, not hostility, toward religion.”

“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,” explained IJ Senior Attorney Michael Bindas. “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 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 hurts 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 restores this program to families that need it to ensure their children have access to a good, safe and meaningful education.”

During the past two-and-a-half decades, a conflict over whether religious options may be barred from school 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.

“Resolving this issue will allow these children to legally participate in educational choice programs and also bring much-needed clarity to state and local governments who wish to enact such programs,” said Institute for Justice Senior Attorney Tim Keller.

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 an educational 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 the state they live in. We’re grateful the Supreme Court has taken up this case. Now we hope the justices issue a clear and decisive ruling that will guide the lower courts to maximum freedom and educational choice for parents for decades to come.”

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