John Kramer
John Kramer · October 2, 2019

Arlington, Virginia—Next week, the U.S. Supreme Court returns for another term and among the cases it will hear is Espinoza v. Montana Department of Revenue, a case expected to set a landmark precedent when it comes to education reform. Espinoza, which is being litigated by the Institute for Justice (IJ), will decide whether states may exclude religious schools from generally available scholarship programs, or if such exclusions violate the U.S. Constitution. The Institute argued its constitutional case for including religious options in a brief it recently filed with the Court.

In 2015, the Montana Legislature decided that every family—regardless of their income—should be able to choose the school that is best for their child. The Legislature enacted a tax-credit scholarship program that would enable low-income families to send their children to private schools, including religious schools. But the Montana Supreme Court struck down the program solely because it allowed families to select religious options.

Institute for Justice Senior Attorney Richard Komer, who will defend the school choice parents in court, said, “Excluding religious options from generally available student-aid programs violates the religious liberty of families and is flatly unconstitutional under the federal Constitution. The Institute for Justice will make that point when we argue this case before the U.S. Supreme Court.”

IJ Attorney Erica Smith, lead co-counsel in the case, said that the case involves three federal constitutional provisions: the Free Exercise Clause, the Equal Protection Clause, and the Establishment Clause. “All three clauses require that the government be neutral—not hostile—toward religion,” said Smith. “But the Montana Supreme Court’s decision discriminates against religion by barring religious options from student-aid programs.”

Much of IJ’s advocacy in its brief focuses on the history and impact of the so-called “Blaine Amendments” under which the Montana Supreme Court invalidated Montana’s scholarship program. Beginning in the 19th century, Blaine Amendments were enacted in state constitutions to discriminate against Catholics. Today, they are used by school choice opponents to attack existing school choice programs and block new ones. Thirty-seven states have Blaine Amendments and many of them have been interpreted to prevent families that receive aid from choosing to attend religious schools.

IJ’s President & General Counsel Scott Bullock said, “If we’re successful in Espinoza, we’ll remove the largest legal obstacle standing between thousands of children and their chance to receive a better education.”

Kendra Espinoza, the lead plaintiff in the case, said, “I believe that school choice is important for all families and all parents everywhere, not just for myself and my children. It is my right as a parent to choose how my children are educated, and not the government’s right to do that.”

The Espinoza case is expected to be argued in early 2020, with a decision to come by the end of June when the Court concludes its term.

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 it recently won a victory before the Supreme Court of Puerto Rico.

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A hi-res video news release in which the Montana school choice moms and their Institute for Justice attorneys discuss this case is available at:

A detailed litigation backgrounder is available here.