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Espinoza Decision Unblocks Education Choice Funding for Religious Schools, Deals Fatal Blow to Blaine Amendments

The U.S. Supreme Court (SCOTUS) released its ruling in a landmark religious freedom and education choice issue, declaring in Espinoza v. Montana Department of Revenue that a state court may not declare unconstitutional an education choice program that permits parents to enroll their children in a religious school.

The June 30 ruling, authored by Chief Justice John Roberts, declared the Montana courts had violated the First Amendment by “discriminat[ing] against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause of the Federal Constitution.” SCOTUS declared the Montana Supreme Court was “obligated to disregard the no-aid provision and decide this case consistent with the Federal Constitution.”

Montana’s no-aid provision, also known as a “Blaine Amendment,” bars direct or indirect aid to religious schools from state funds. Blaine amendments were anti-Catholic pieces of legislation promoted in the late-nineteenth century to prevent the funding of parochial schools. These Blaine provisions can be found in the constitutions of 37 different states, as many western territories were blocked from statehood by the U.S. Congress unless their constitution contained one.

Roberts stated that although a state has the right not to subsidize private education, once it sets up a program to do so it “cannot disqualify some private schools solely because they are religious.”

In 2015, the Montana Legislature enacted the Tax Credits for Contributions to Student Scholarship Organizations program, a tax-credit scholarship program. These programs allow qualifying families to pay for tuition and fees at private and parochial schools in addition to traditional public school or public charter schools located outside of a student’s school district. The programs use scholarships provided by donors, who receive tax credits in return.

By strictly interpreting Montana’s no-aid provision however, the Montana Supreme Court ruled the program unconstitutional and blocked its implementation. The Institute of Justice (IJ) then appealed the case to the Supreme Court on behalf of three plaintiffs.

“I am thrilled that the courts ruled in favor of the Constitution and maintained a parent’s right to choose where their children go to school,” said lead plaintiff Kendra Espinoza. “For our family, this means we can continue to receive assistance that is a lifeline to our ability to stay at [our private school]. For so many other families across America, this will potentially mean changing lives and positively altering the future of thousands of children nationwide. What a wonderful victory.”

“The Supreme Court delivered a major victory to parents who want to choose the best school for their children, including religious schools,” said Erica Smith, a co-counsel on the case and a senior attorney for IJ. “This is a landmark case in education that will allow states across the country to enact educational choice programs that give parents maximum educational options.”

Other school choice advocates were quick to celebrate the Court’s decision.

“For years, the archaic obstacle of Blaine Amendments has kept thousands of students and families away from the opportunity to attend schools other than those assigned to them solely by where they live,” a statement from former Florida governor Jeb Bush read. Bush, who was instrumental in the enacting of Florida’s first two education choice programs, is also the founder and chairman of the education reform nonprofit the Foundation for Excellence in Education. “Today’s Supreme Court decision liberates states to expand educational options for the underserved, giving families the freedom to find the best fit for their children,” the statement continued.

“The Court rightly recognized the discriminatory nature of state Blaine amendments, and they’ve once again affirmed the constitutionality of school choice programs,” said John Schilling, president of the school reform group the American Federation for Children, in a press release. “These Blaine laws, spurred by a nineteenth century movement rooted in anti-Catholic animus, have long been used by opponents of school choice to prevent families from pursuing educational options.”

Joining Chief Justice Roberts in the 5-4 majority were justices Samuel Alito, Neil Gorsuch, Brett Kavanaugh, and Clarence Thomas, with separate concurrences written by Thomas with Gorsuch concurring, Gorsuch solo, and Alito, respectively. The Court’s liberal bloc authored three separate dissenting opinions, one by Ruth Bader Ginsburg with Elena Kagan concurring, another by Stephen Breyer with Kagan concurring, and another by Sonia Sotomayor.

Tim Benson
Tim Benson
Tim Benson joined The Heartland Institute in September 2015 as a policy analyst in the Government Relations Department.


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