Bench Memos

Law & the Courts

Espinoza Ends State-Sanctioned Religious Discrimination in Education

The Supreme Court in Washington, D.C., June 11, 2018 (Erin Schaff/Reuters)

Montana parents like Randi Meyer had something to celebrate Tuesday. In Espinoza v. Montana Department of Revenuethe Supreme Court toppled a barrier that for more than a century has handicapped Catholic schools in Montana and other states and discriminated against parents like Randi searching for a better education for their kids.

Randi, mom to three boys, is the sole means of support for her family since a back injury left her husband Scott unable to work. Two of Randi’s boys have special learning needs and struggled at their public school. St Joseph’s K-8 Catholic school in Missoula had a much better learning plan for them. Thanks to tuition assistance and great sacrifice on their part, Randi and Scott have been able to send all three boys to St. Joe’s. But the Meyers hope their boys can access government-endorsed tuition scholarships after Tuesday’s 5-4 Supreme Court decision in Espinoza. The high court clarified that, contrary to the ruling of Montana’s highest court, a modest tuition-assistance program must be available for use at all private schools, including religious ones.

Back in 2015, the Montana legislature enacted a tax-credit scholarship program. It offered a dollar-for-dollar tax credit of up to $150 for donations to private organizations funding tuition scholarships for private-school students. In rules for the program, the state’s revenue department excluded religiously affiliated schools from the tuition assistance. It pointed to a provision in Montana’s constitution — a state Blaine amendment — prohibiting public money for any “sectarian” purpose.

Montana’s ban on public aid to “sectarian” schools and institutions traces back to a period of intense anti-Catholic animus across the United States in the 19th century.  Many non-Catholics supported barring government funding of Catholic “sectarian” schools at a time when public schools were overwhelmingly and explicitly Protestant. The “state Blaines” mirror House speaker James G. Blaine’s unsuccessful proposal to include a funding ban in the U.S. Constitution’s First Amendment. Checked at the federal level, “no aid” language found its way into Montana’s 1884 territorial constitution and the 1889 state constitution. Montana was not alone. Blaine amendments are tucked in the constitutions of more than 25 states. Over time, they’ve been used to bar state funding of all religious schools, not just Catholic schools. Until Tuesday.

Kendra Espinoza and two other Montana moms with kids at Christian schools objected to the state’s exclusionary rule and filed suit. The state high court agreed with the tax department and, astonishingly, invalidated the entire program. These moms, however, wouldn’t give up. They sought relief in our nation’s court of last resort, the U.S. Supreme Court. Numerous friends of the court filed briefs in support of Espinoza, et al. Among them were Randi Meyer and other Montana Catholic School parents whose amicus brief shared their personal stories of how Catholic schools have benefited their children and their families.

Five years after state lawmakers passed the private-school scholarship program, the U.S. Supreme Court found that it’s simply unconstitutional for a state to exclude a school from a private-school funding program because of the school’s religious character. “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools,” Chief Justice John Roberts wrote for the majority. “The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”

The state claimed that general school aid could be used for religious ends by some recipients. The Supreme Court, however, has consistently held that a state does not violate the Establishment Clause when religious groups have access to neutral governmental programs that are generally open to broad classes of participants. As Roberts made clear in Tuesday’s opinion, “We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

Espinoza ends state-sanctioned religious discrimination in education. It gives children from low-income families a better chance to benefit from Catholic schools. As parents like Randi and Scott Meyer attest, Catholic schools are often the only lifeline available for students not well-served by their local public school. By effectively burying the Blaines, the Supreme Court’s decision also empowers states to respond to the danger of Catholic and other private-school closures. This comes none too soon, as Catholic schools across the country are struggling to keep their doors open.

In this week’s Espinoza decision, the Supreme Court removed a great stain on our nation’s history, but what it did for our present and future may be more important. It enhanced the ability of low-income students, such as Randi Meyer’s boys, to attend Catholic schools using government-endorsed private-scholarship funds. A welcome victory for religious freedom, countless American families, and our country’s Catholic schools.

Andrea Picciotti-Bayer is Legal Advisor for The Catholic Association Foundation and co-host of the syndicated radio show Conversations with Consequences.

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