In 2002, the U.S. Supreme Court upheld Cleveland, Ohio's school choice program against the charge that it was unconstitutional for that city to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. So long as "a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice," the Court said in Zelman v. Simmons-Harris, the program passes constitutional muster.
The Supreme Court is now preparing to weigh the constitutional merits of another school choice initiative. At issue in Espinoza v. Montana Department of Revenue is a 2015 scholarship program created by the Montana legislature "to provide parental and student choice in education." The program operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify for the scholarships may use the money to help send their children to a "qualified education provider," a statutory category which includes religiously affiliated private schools, grades K through 12.
In 2018, however, the Montana Supreme Court declared religious schools entirely off-limits for the program, pointing to a provision of the Montana Constitution which prohibits the use of public funds "for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in party by any church, sect, or denomination."
In other words, the Montana Supreme Court said that the state Constitution prohibits the very sort of school choice programs that the U.S. Supreme Court has previously upheld under the federal Constitution. The Montana Court resolved this conflict by putting its own interpretation first. "We conclude that Montana's Constitution more broadly prohibits 'any' state aid to sectarian schools and draws a 'more stringent line than that drawn' by its [federal] counterpart," the state court declared.
That judgment will now be reviewed by the U.S. Supreme Court.
It is difficult to imagine a majority of the justices allowing the Montana decision to stand. For one thing, the Montana scholarship program seems to easily satisfy the test of constitutionality set out in Zelman v. Simmons-Harris and related cases. For another, the Supreme Court is unlikely to let a state court chart its own path in opposition to the federal jurisprudence that is in place for the rest of the country. It is one thing, after all, to let the states operate as "laboratories of democracy," but it is something else to let the Constitution effectively mean two different things in two different states, to say that the Constitution protects the rights of parents and children to access school choice programs in Ohio but does not protect the rights of parents and children to access similar programs in Montana.
Assuming the Supreme Court follows its own precedents, Espinoza v. Montana Department of Revenue looks to be a winner for the school choice side.
Oral arguments in the case are likely to be held sometime in early 2020.