DENVER — A U.S. Supreme Court ruling on Tuesday settled a more than century-old fight over school choice and religious liberty and could impact the future of private school choice programs in Colorado.
In a 5-4 decision, the court ruled in Espinoza v. Montana Department of Revenue that by denying parents the ability to use tax-credit scholarships to send their kids to private, religious schools of their choice, the state was in violation of the Free Exercise Clause of the First Amendment of the U.S. Constitution, saying in part that the clause “protects religious observers against unequal treatment” and protects against “laws that impose special disabilities on the basis of religious status.” .
The lawsuit, which reached the high court earlier this year, was initially brought by a single mother in Montana, Kendra Espinoza, who wanted to take advantage of a scholarship program passed in that state that would help her cover the cost of a private education for her daughters.
Despite Montana lawmakers intending the scholarship to be available to all students, officials at the state’s department of revenue would not allow Espinoza to use it on a religious school, citing what is known as the “Blaine Amendment,” in force in Montana’s state constitution. Some form of Blaine language, named for Rep. James Blaine, a Maine legislator from the late 1800s who tried to pass federal legislation prohibiting public funding from being used in “sectarian” schools, is found in 36 other state constitutions, including Colorado’s.
Today, most teachers’ unions, the American Civil Liberties Union and others still support Blaine Amendments, claiming they protect public funds from being used for religious indoctrination.
But according to constitutional scholar Rob Natelson of the Denver-based Independence Institute*, the amendments were the result of religious bigotry of the times, intended to discriminate against some religions, but in favor of others. “Anti-sectarian clauses were designed to permit public money to flow to Episcopal, Methodist, and Presbyterian schools while denying it to Jewish, Mormon, Muslim, and Catholic schools,” wrote Natelson in a Complete Colorado opinion piece earlier this year.
The basis behind the Montana lawsuit, however, was not to advance religious teachings in school. Espinoza’s argument was that she best knew what the right educational fit was for her children. Those supporting Espinoza agreed, with many amicus, or “friends of the court” briefs arguing that parents possess a constitutional right to choose their children’s education.
The high court agreed.
“This Court held (in previous decisions) that disqualifying otherwise eligible recipients from a public benefit ‘solely because of their religious character’ imposes ‘a penalty on the free exercise of religion that triggers the most exacting scrutiny,’” the ruling read in part. “Here, the application of Montana’s no-aid provision excludes religious schools from public benefits solely because of religious status. As a result, strict scrutiny applies.”
In his concurring opinion, which repeatedly cited an Independence Institute amicus brief co-authored by Natelson and fellow constitutional scholar David Kopel, Justice Samuel Alito wrote: “The tax-credit program adopted by the Montana Legislature but overturned by the Montana Supreme Court provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice.”
Ross Izard, the national director of public policy for ACE Scholarships in Denver said the ruling is a huge victory for school choice advocates in Colorado, both legally and politically.
ACE reports serving almost 1,000 kids in Montana through its privately funded scholarship-granting program.
Izard, who was heavily involved in the battle for the Choice Scholarship Program in Douglas County, said this ruling would have played a major role in the implementation of that program had it gone forward.
The Choice Scholarship Program would have provided state funding to up to 500 families for private education, including religious schools. However, an anti-school choice slate of school board candidates that were elected in 2017 put the skids on that program — which was working its way through the courts — almost immediately after taking office.
“It would be hard to make an argument, now, that school districts would be allowed to bar faith-based schools from participation or to tell parents they couldn’t select a faith-based school from a legal perspective,” Izard said.
From the political angle, however, Izard said the ruling doesn’t change much in Colorado’s current climate. The ruling doesn’t require states or school districts to implement scholarships or voucher programs for private schools, it just stipulates if they do, they cannot exclude religious schools from the program, Izard said
“The Supreme Court said that legislatures (or individual school districts) can basically decide to have school choice programs or to not have school choice programs,” Izard said. “That’s a policy discussion. But any school choice program that is passed by an elected body is going to have to ascribe to this ruling because it was a First Amendment ruling.”
He added the work is nowhere near done.
“People need to be careful,” Izard said. “It’s a huge victory, and we should absolutely celebrate. But I want people to be careful about thinking this is the end of road. There are still an awful lot of kids who still need help, who need better educational opportunities, and those fights are still out there. We are still going to have to have those conversations legislatively. This stage removes an impediment; it removes a barrier, but it doesn’t guarantee those kids are going to get what they need. That’s a different conversation. And we have to be willing to show up for that fight when the time comes.
*Independence Institute is the publisher of Complete Colorado.