Supreme Court

The Supreme Court's Next Big School Choice Case

What’s at stake in Espinoza v. Montana Department of Revenue.


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.

NEXT: Did California Just Abolish Single-Family Zoning?

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. "School choice?"
    Since when should the offspring of the vile, filthy and unenlightened to any other institution of indoctrination but what is given to them by the wise ruling elitist turds who take the time and trouble to oppress us all?
    Where's the gratitude?
    Don't these counter-revolutionaries know children is the future, and the future is socialist slavery for all, except of course for our loving shepherds who gently and judiciously suppress us and our freedoms for our own good?

    1. Nothing says we care about minorities more than forcing them into shitty liberal ran public schools.

  2. I would tentatively say that the states can go beyond the 1st Amendment in limiting aid to religious institutions. And they can even choose to interpret a tax break as a subsidy, if they want to be silly.

    That's not the same as saying it's a good thing to have a secular-only choice program.

    1. I guess it depends on whether you look at this as applying a stronger version of the establishment clause (which should be acceptable) or as applying a weaker version of the free exercise clause (which would be unacceptable)

      1. Applying a stronger version of the establishment clause may implicate equal protection.

        There is no fundamental right to public benefits, of course. But if a state chooses to offer public benefits, it must do so in an even-handed manner. It seems to me that it is a violation of equal protection to deny public benefits because the receipient intends to use it for a religious purpose.

  3. As much as I am in favor of school choice, I don't like the idea of the US Supreme Court being able to tell Montana what the Montana Constitution means.

    If there were a conflict, I would agree the Fed Constitution should stand. But this seems to be a case of the the SC says it's permissible by the Fed Constitution, not that it's a requirement.

    1. Uh, I agree that the way it's outlined here seems weird, but I believe the real nuts and bolts of the argument is based on the free exercise premise. Which is to say, if the Montana constitution purports to restrict people from using these scholarships to send their children to religious schools, then it has interfered with the free exercise of their religion, and must be enjoined in order to protect those citizens' (federal) constitutional rights.

      I probably haven't outlined it in a way that passes muster here (I'm not 100% sure the actual argument passes muster, but I think it's reasonable) but hopefully you get the gist.

    2. Terrible artickes are par for the course here.

      This is about the Blaine Amendment, an anti-Catholic amendment to the US Constitution that failed to be adopted, but was nonetheless adopted by most state constitutions.

      Protestant schools were considered at the time "non sectarian", so the language was an attack on catholic schools.

      If we can claim that Trumps non-Muslim ban was somehow racist against Muslims because of a speech he gave as a candiddate, we should certainly look at the intent behind these amendments

  4. It seems that SCOTUS decided that Ohio's school choice program wasn't unconstitutional. That's not the same thing as declaring that school choice involving religious schools is constitutionally protected. I don't really see a conflict between SCOTUS saying that the US Constitution doesn't prohibit school choice to religious schools and Montana saying that the Montana Constitution does prohibit it.

    From SCOTUS, "The question presented is whether this program offends the establishment clause of the US Constitution. We hold that it does not." Is there anything else that supports the statement, "the Constitution protects the rights of parents and children to access school choice programs in Ohio"?

    Don't get me wrong, I'm all for school choice. And I would take issue with the idea that allowing kids to use public money to pay for religious schools counts as using public funds to "aid any church, school... controlled by any... church". School tuition is certainly different from contributing to the Buy-the-Reverend-a-Plane Fund.

  5. Supreme Despots..
    The Odious Fiction Destroying America - The Doctrine of the Lesser Magistrates..
    We now have social transformation without representation. And that is what the Supreme Court is in our day – despots.
    And they are not the final arbiters – as Jefferson states, “The Constitution has erected no such single tribunal.”
    They proffer Article 6, paragraph 2 of the U.S. Constitution – the ‘supremacy clause’ – for their notion of judicial supremacy. But when you read Article 6, paragraph 2, you realize that the Supreme Court isn’t even mentioned, nor are federal courts of any kind mentioned. Article 6, paragraph 2 – known as the supremacy clause actually gives supremacy to the Constitution!
    Wholly opposite of this view of ‘judicial supremacy’ was the view held by America’s founders. They viewed the judiciary as being the weakest branch of the government.
    At the establishment of our constitutions, the judiciary bodies were supposed to be the most helpless and harmless members of the government. Experience, however, soon showed in what way they were to become the most dangerous.”

    1. " what way they were to become the most dangerous."
      Two centuries plus (experience?) has shown how dangerous the political paradigm of coercion can be. It grows unlimited by its creator/supporters, the people. Oh no, the people didn't create the paradigm, they let an elite do that, then a larger segment ratified the anti-American coup. Still, it wasn't enough to overcome the American Spirit, the American Dream. It took the Prussian school system of indoctrination in obedience to authority to do that. And it took a century. Now, "The Most Dangerous Superstition" is a common belief, an unquestioned axiom.

  6. If you are one that believes the Supreme Court is the final arbiter of what is lawful and constitutional, then you have believed a lie and a myth that Jefferson warned about. The States still retain their rights to this day to defy the federal judiciary, which has become an oligarcy. We just need strong statesmen as governors and legislatures to make that stand!

    In writing to William Jarvis, Jefferson said, "You seem . . . to consider the judges as the ultimate arbiters of all constitutional questions; a very dangerous doctrine indeed, and one which would place us under the despotism of an oligarchy."

    The germ of dissolution of our federal government is in the constitution of the federal Judiciary; an irresponsible body (for impeachment is scarcely a scare-crow) working like gravity by night and by day, gaining a little today and a little tomorrow, and advancing its noiseless step like a thief, over the field of jurisdiction, until all shall be usurped."

  7. There is a significant difference between the two cases. Saying that giving the money does not run afoul of the Establishment clause (Zelman) is not the same as saying denying the money to religious organizations runs afoul of the Establishment Clause (Espinoza).

    Espinoza is a close case for me, I don't know where I stand. But I know for sure that Zelman is inapposite.

    1. The free exercuise clause is not violated merely because the starte refuses to fund churches.

      But if a state offers a public benefit, it seems to violate equal protection if churches were explicitly excluded from a benefit. For example, let us consider a program granting $10,000 to property owners in poor neighborhoods, with the qualification that the building was constructed before 1980. If one of those buildings was a church, it would normally not be a violation of the Establishment Clause to provide the money, as the grant arises from a public benefit with no religious qualifiers- and expressly excluding churches or even religious buildings in general would violate the clause.

  8. Seems to me this is just a difference in how states want to spend their education budgets. No reason for the federal government to get involved at all.

  9. Schools that teach religious fiction as history or suppress science to flatter superstition should be neither funded by taxpayers nor accredited by mainstream academia.

    These points are likely to prevail in America over time as our electorate improves and our nation progresses.

    People are entitled to believe as they wish. Competent adults, however, neither advance nor accept superstition-based, fictional arguments or assertions in reasoned debate.

    1. And yet, the exercise of religion is explicitly protected by the constitution.

    2. You must have a pretty low regard for the Great Awokening.

  10. I agree with the consensus above. As framed in the article, there is no conflict with the federal constitution.

    Montana has a constitution that is explicitly more restrictive of government involvement with religion. That seems perfectly reasonable. There are lots of things that states are more constrained about. This isn't about infringing individual liberties, this is about constraining the actions of government.

    The confounding fact is that the net result is to restrict the freedom of individual parents with respect to their children's education. Which is a strange outcome.

    But if Montana shutters the entire program for the whole state, there shouldn't be an issue.... it would only be in conflict if they tried to run it while excluding religious schools.

Please to post comments

Comments are closed.