Education choice families should heed key message in Espinoza v. Montana Department of Revenue

Leslie Hiner

Editor’s note: Leslie Hiner, vice president of legal affairs at EdChoice, connects this U.S. Supreme Court case with the recent controversy over the Florida Tax Credit Scholarship program and the interests of LGBTQ, lower-income and minority students, stressing that the position held by those who argue against financial support of religiously-affiliated schools is in direct conflict with precedent relevant in Espinoza.

Attention parents, grandparents, and anyone responsible for the K-12 education of a child under the age of 18.

You are about to be impacted in a big way by people you probably don’t know. These people do not live in your neighborhood. They know virtually nothing about you or your children. But their decision will either respect your freedom to direct the education of your child, or it will limit or jeopardize your child’s educational opportunities.

The nine justices of the U.S. Supreme Court will deliver a decision sometime before the end of June in Espinoza v. Montana Department of Revenue. The key issue in this case is whether parents who access school choice scholarships for their children may have the option to choose a religiously affiliated school for their children’s education.

In legal terms, the question before the Court is whether it is a violation of the Religion Clauses (Free Exercise, and Establishment) or Equal Protection Clause of the U.S. Constitution to invalidate “a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”

How does this impact you?

The justices’ decision may create a huge new opportunity for expanded learning options for your child while protecting school choice options you may enjoy today.

In Montana, religiously-affiliated schools were banned from their school choice program. Parents who accessed scholarships from the program were denied the right to use those scholarships for their children at religiously-affiliated schools, and that’s why the parents sued the state. This is different from the famous Ohio voucher case, Zelman v. Simmons-Harris. In Zelman, the Court was asked whether it is constitutionally permissible for the state to include religiously-affiliated private schools in a voucher program. The Court said yes.

In Espinoza, the Court is asked whether it’s constitutional for the state to deny parents a free choice of schools, by excluding religiously-affiliated schools from a school choice program.

Espinoza could apply to you in two ways. If you live in a state with a Blaine Amendment that has no education choice, a favorable decision in Espinoza could energize legislators to enact school choice programs. If you live in a state with a Blaine Amendment but nonetheless have vouchers or similar programs, a favorable U.S. Supreme Court decision could remove all doubt as to the constitutionality of those programs and energize legislators to expand existing educational opportunities. Blaine amendments cast a heavy shadow over legislator confidence regarding constitutionality; if lifted, legislators will find a much clearer path toward expansive educational choice.

Religious freedom, guaranteed to each of us under the First Amendment of the U.S. Constitution, plays an important role in education. A majority 66.4 percent of private schools are religiously affiliated, and 78 percent of private school students attend religiously-affiliated schools. Also, until the late 20th century, public schools operated like Protestant schools where children prayed and recited verses from the King James Bible.

I stand as a witness to this history, remembering the day it was my turn, in the sixth grade at my public school (not in the Bible Belt), to choose and deliver the scripture reading of the day. The absence of faith (or hostility toward religion) in today’s public schools has heightened parent interest in the virtues and offerings of religiously-affiliated schools, perhaps in part because today’s grandparents and some parents remember when faith in God – expressed casually in public schools – was as normal as saying the Pledge of Allegiance.

In Florida, religiously-affiliated schools that are part of the state’s tax credit scholarship program are under attack by some individuals who allege the schools’ religious beliefs are discriminatory and therefor, the schools should not be supported. This position is in direct conflict with U.S. Supreme Court precedent, which is relevant in Espinoza. When religiously-affiliated schools participate in student-aid programs, the state’s position regarding those schools must be neutral; discriminatory judgment regarding religious beliefs would violate the right to freely exercise those beliefs.

Thinly veiled attempts to compel scholarship groups or the state to violate neutrality toward religiously-affiliated schools is ill-considered.

During Espinoza oral arguments, Supreme Court justices were reminded that parents, not scholarship groups or the state, decide which school is the right fit for their children. Florida donors targeting religiously-affiliated schools should also be reminded that parents choose these schools; sometimes parents’ religious beliefs align with the schools, and sometimes parents choose a school for reasons that have nothing to do with religion. When corporate donors oppose the religious beliefs of those schools, they are punishing parents for choosing those schools, regardless the reason. Corporate donors have no requirement to fund scholarships, but when they stop funding scholarships to compel discrimination against those who hold certain religious beliefs, that’s wrong – and offensive to the First Amendment of the Constitution.

“Generally available and religiously neutral student-aid programs” fund parents on behalf of their children; the public benefit of these programs is directed to students through their parents. “Student-aid” programs do not fund schools. This principle has been clear since the Court’s 2002 Zelman decision. As Dick Komer, the Institute for Justice attorney representing parents in Espinoza, stated to the U.S. Supreme Court during oral arguments, “Zelman has already answered the question about who this program is aiding. It’s not aiding the schools. It is aiding the parents.”

No person has asked the U.S. Supreme Court to force states to directly fund private schools like they directly fund public schools. Nonetheless, the Court chose to take the funding question to another level during Espinoza oral arguments.

Justice Breyer began the discussion with probing questions on whether a win for the parents in this case would also mean states would be forced to fund private schools directly along with funding public schools. Would a favorable decision mean states would violate the Constitution if they failed to directly fund both public and private schools?

An important, and unexpected, lesson emerged from this line of questioning.

Montana’s school choice program applies universally to all children in that state. And Justice Breyer’s questions rested solely on the principle that education funding applies to all children. He drew no distinction between education funding for children whose parents have higher income or lower income, or children who attend “A” rated or “F” rated schools, as is the case with many school choice programs.

As I listened to the debate, it struck me that a discussion on school choice funding that presumed funding would apply universally to all children was unusual. And it was refreshing.

Advocates of educational freedom often disagree about whether it is possible, or even desirable, for a state to provide scholarship programs for all children, regardless of income or circumstances. Yet, Supreme Court decisions on the constitutionality of educational choice apply to all children, not some children. This is a good precedent that all education reformers should follow.

The explosion of education alternatives illustrated in Step Up For Students’ Education Landscape document proves options are continuing to grow, with micro-schools being the latest alternative presenting real learning opportunities for children. As we continue to embrace innovative ways to educate the next generation of leaders, we should be mindful that all children have a right to learn.

If you notice that the sparkle of youth and joy of learning – that twinkle in your child’s eyes – has disappeared, Justice Clarence Thomas and Justice Ruth Bader Ginsburg and their peers may be the last people you’ll think about when wondering if you’ll be able to access an education for your child that will rekindle that joy of learning. However, now is the time to pay attention to the Supreme Court, and to learn a powerful lesson about providing educational benefits to all children.

For more rederfinED posts about Espinoza v. Montana Department of Revenue, click here and here.

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