Education groups and activists on all sides of the debate over private school choice agree that a Tuesday ruling by the U.S. Supreme Court will be tremendously consequential. But it may take some time for the ripple effects to spread.
In a 5-4 in Espinoza v. Montana Department of Revenue, the court held that a Montana prohibition on families from using state tax-credit scholarships at religious schools was an unconstitutional violation of religious freedom.
Here鈥檚 a rundown of what that means, and what comes next.
What Is a No-Aid Rule?
Montana is one of 38 states that have state constitutional amendments or 鈥渘o-aid鈥� rules that bar distribution of public funds to religious institutions. Such amendments are sometimes refered to as 鈥淏laine amendments.鈥�
Montana鈥檚 state department of revenue鈥攚hich administers its program that provides tax-credits in exchange for donations to modest scholarships鈥� had determined that, under the no-aid provision, families benefiting from the state鈥檚 program could not use those scholarships to send their children to religiously affiliated private schools.
Parent plaintiffs at the center of the Montana case, joined by the Trump administration, argued that decision violated their religious liberty. The state argued that that the constitutional provision kept Montana鈥檚 鈥渙wn state legislature out of the business of funding of religious schools鈥� and that it didn鈥檛 discriminate because the same rules applied to all scholarship families, regardless of their religion.
The court sided with the families Tuesday.
鈥淭o be eligible for government aid under the Montana Constitution, a school must divorce itself from any religious control or affiliation,鈥� Chief Justice John Roberts said in his majority opinion.
鈥淧lacing such a condition on benefits or privileges 鈥榠nevitably deters or discourages the exercise of First Amendment rights,鈥欌�� he wrote, citing the court鈥檚 2017 opinion in , which held that Missouri couldn鈥檛 bar a church from receiving state support for playground safety because of its religious affiliation.
Does This Mean States Have to Fund Private Education Now?
Seventeen states operate 22 that provided awards to about 300,000 students in 2017, said a 2019 report from the Government Accountability Office.
Some public education groups that oppose public funding for private school choice programs have argued that a ruling for the families in the Espinoza case could swing open the doors for greater public funding of private, religious education. But, if that鈥檚 true, the effect won鈥檛 be immediate in most states.
Some states with large voucher and tax-credit scholarship programs, like Florida and Indiana, allow those funds to be used at private schools, even though their state constitutions contain no-aid provisions.
And there鈥檚 nothing in the court鈥檚 opinion that would require a state to start a private school choice program if it doesn鈥檛 already have one.
鈥淎 State need not subsidize private education,鈥� Roberts wrote in the majority opinion. 鈥淏ut once a State decides to do so, it cannot disqualify some private schools solely because they are religious.鈥�
Attorneys for the Institute for Justice, who argued on behalf of parents in the case, said they will next turn their attention to the two states鈥擬aine and Vermont鈥攖hat bar religious schools from their private school choice programs.
The organization has an , in which three families challenged the exclusion of religious schools from a 鈥渢uitioning towns鈥� program, through which some school districts that don鈥檛 have high schools instead provide funds to families to send their children to public and private schools elsewhere.
A district court judge last year, and the families appealed the decision to the U.S. Court of Appeals for the First Circuit in Massachusetts. Attorneys for the Institute for Justice plan to file a new brief in that case, citing the Espinoza decision, attorney Tim Keller said. And the organization hopes to file a similar lawsuit in Vermont, applying the Espinoza ruling in its arguments.
鈥淲e are going to build upon this decision...to make sure that any further legal impediments don鈥檛 stand in the way of school choice programs,鈥� IJ President General Counsel Scott Bullock said on a call with reporters Tuesday.
Of the states with no-aid provisions, 14 have determined those rules bar the use of publicly funded school choice programs to private religious schools, the attorneys said. Some of those states have not established voucher or tax-credit scholarship programs, and the IJ attorneys hope Tuesday鈥檚 decision will encourage them to do so.
鈥淭he legal impediments to effective school choice programs are now removed, and it鈥檚 up to the legislators now to move forward,鈥� said attorney Dick Komer, who argued for the Espinoza plaintiffs in court.
States most likely to act on the decision are Idaho, Missouri, South Dakota, and Texas, the attorneys speculated, citing previous discussions about how those state鈥檚 constitutions who affect potential tax-credit scholarships proposals.
, who has proposed a federal tax-credit scholarship program and has championed state-level efforts, praised the ruling. She issued a statement 鈥渃alling on all states to now seize the extraordinary opportunity to expand all education options at all schools to every single student in America.鈥�
The White House, in a statement, praised the ruling, saying it 鈥渞emoves one of the biggest obstacles to better educational opportunities for all children.鈥�
Why Are Some Advocates Worried About What Comes Next?
Opponents of voucher and tax-credit scholarships argue they siphon public funds away from public schools, which provide education to the vast majority of U.S. students.
In its ruling, the Supreme Court 鈥渉as opened the door for voucher proponents in states to aggressively pursue the diversion of taxpayer dollars to private schools鈥攕chools that can pick and choose who they educate and are not accountable to taxpayers,鈥� said a statement by the National Coalition for Public Education, a group of organizations that oppose private school choice programs. 鈥淣ow more than ever, as our country tries to rectify our history of racial injustice, we need to invest in our public schools that welcome all children and unite our communities, not in private schools that further divide us.鈥�
Some civil rights groups have argued that religious schools, in particular, may discriminate against students because of their sexual orientation or gender identity. This was an issue in debates over expanding Florida鈥檚 school choice programs recently after found 83 participating private schools had written policies barring attendance by LGBTQ students and, in some cases, the children of gay and lesbian couples.
GLSEN, an organization that represents LGBTQ students, said Tuesday that the Supreme Court鈥檚 decision would essentially force taxpayers to fund discrimination.
鈥淥ur opponents have made it clear that they intend to leverage this decision to pave the way for further privatization across the country,鈥� GLSEN Executive Director Eliza Byard said in a statement. 鈥淚f we are ever to achieve liberation for LGBTQ people and undo the legacy of racism and slavery in this country, we must block these efforts and ensure we are using our taxpayer dollars to make our nation鈥檚 schools safe and enriching for all students, not starving our public schools of essential funds and sustaining anti-LGBTQ school environments that put our young people at risk.鈥�
Where Will This Take Debate Over the Church-State Divide in Education?
The Espinoza decision fits into a canon of religious liberty cases, all heavily watched for their potential application in future arguments.
At oral arguments in January, Justice Stephen Breyer gave a hint to the complicated web of questions that will follow the ruling when he asked about the possibility of
鈥淪ay in San Francisco or Boston or take any city or state, and they give many, many, many millions of dollars to the public school system, and a lot of them give a lot of money to charter schools,鈥� Breyer said to Jeffrey Wall, the principal deputy U.S. solicitor general, who argued against Montana鈥檚 no-aid clause. 鈥淣ow, they don鈥檛 give money to Catholic schools. All right? Now, if we decide you鈥檙e right, does that all change?鈥�
Legal experts in January about that line of questioning agreed it鈥檚 quite complicated and that a ruling against Montana wouldn鈥檛 immediately pave the way for a religious charter school. But the question itself demonstrated the kinds of complicated questions that may come next, they said.
Asked Tuesday by a reporter about the possibility of religious charter schools, lawyers for the parents in Espinoza rejected the idea.
鈥淐harter schools are public schools, and they receive direct public funding,鈥� Keller said. 鈥淭here is not an opportunity under this ruling for states to authorize religiously affiliated charter schools.鈥�
Photo: School choice supporters from eight schools demonstrate in front of the U.S. Supreme Court during oral arguments in the Espinoza v. Montana Department of Revenue case in January--Graeme Sloan/Education Week