Double Jeopardy for School Choice

Education activists are back in court.


In Zelman v. Simmons-Harris (2002), the U.S. Supreme Court upheld Cleveland, Ohio's school choice program against the charge that it was unconstitutional 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, the program passes constitutional muster.

The Supreme Court is now weighing 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 Treasure State's 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 category which includes religiously affiliated K–12 private schools.

In 2018, however, the Montana Supreme Court declared religious schools entirely off-limits for the program, pointing to a provision of the Montana Constitution that 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 part by any church, sect, or denomination."

In effect, the ruling said, the Montana Constitution prohibits the very sort of school choice programs that the U.S. Supreme Court has previously upheld under the federal Constitution. "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.

Assuming the Supreme Court justices follow their own precedents, Espinoza looks to be a winner for the school choice side. The Montana scholarship program seems to easily satisfy the test of constitutionality set out in Simmons-Harris and related cases, and the Supreme Court is unlikely to let a state court chart its own path in opposition to the federal jurisprudence that's in place for the rest of the country. It is one thing, after all, to let the states operate as "laboratories of democracy" and something else to let the Constitution effectively mean two different things in two different places.

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  1. So they’ll quit giving churches tax breaks?

    1. Will they quit giving all nonprofits tax breaks, or will they only discriminate against churches in that respect?

      1. Nonprofit Tax Return; All profits = Executive Salary… The End.

        1. Yes, I see a lot of non-profits that fit that description. It’s a fraud on the donors IMHO, though donors should also do their due diligence. At least the non-profit executive pays taxes on his income, though not on his expense account. Perhaps a decade ago, I checked on the salary of the head of United Way, and learned he got over $400,000 in compensation each year. Which is mostly why I don’t donate to them, the other being that there are other better charities than the ones to which they donate.

  2. I don’t see on what basis the US Supreme Court could overrule this case. The Montana Supreme Court is the highest judicial authority in interpreting the Montana constitution. That is to say that the US Supreme Court has no authority to overrule the Montana Supreme Court’s interpretations of the Montana constitution.

    Unless the Montana Supreme Court’s interpretation of the Montana constitution violates federal law, the US Supreme Court must let the ruling stand. Is there some thought that the Montana Supreme Court’s ruling violates the US constitution?

    1. You make a very good point. The only answer I have is I believe Montana’s constitution violates the 1A with regards to the “establishment of religion”. Part of this establishment is that states can’t “force nor influence a person to go to or remain away from church against his will or force him to profess belief or disbelief in any religion” – Justice Hugo Black. I am siting this from a wikipedia article about the Establishment Clause if you want to see the full text.

    2. And the US Supreme Court is the highest judicial authority in interpreting the US Constitution.

      So if it’s determined that the Montana constitution infringes on the rights established by the US Constitution, then that’s what’s important. States may provide greater protection of rights under their own constitution but they can’t provide less.

      1. Every protection is also an infringement on the flip side. Here, that protection may be the taxpayer who is expected to support a religion not of his liking.

        1. I disagree. Real rights, are those that protect you from the government, and are inhibitions on what the government may do, not what it must do. Meanwhile, we pay the government to protect our lives, our liberty, our property (ok I added it but how can the government protect our liberty without also protecting our property), and our pursuit of happiness. Not to provide for us (though a lot of people voted for it to do so via welfare programs including Social Security, Medicare and Medicaid – those programs are immoral because they take from Peter for Paul’s benefit, though many falsely think they’ll get the money back when they retire when they’ll really get someone else’s money).

        2. as long as you view the funds used to provide for the studen’t education SOMEWHERE as supporting the entity operating the school, you will find a way to get yer knickers twisted all up into knots.

          Many states are fine with things like scholarships education vouchers, etc, being exendible at ANY qualified institution of instruction. Bear in mind, a school affiliated wiht, or even operated by, a given denomination is still a SCHOOL and to be accredited must deliver a certain level of content to a given stadard. If that school also provides instruction or education more in line with their own religious convictions, fine. Don’t forget, that the lion’s share of instruction in government schools follows very closely thepattern of secular education, which includes boatloads of moral content and value, secular content and value that is antithetical to biblical standards and teachings…. you will recall that the issue of evolutioin vs creation was a hit button issue some decades back.. these days, in most pubilcally funded schools, the mere metnion of the concept of “intelligent desing” will create a major donnybrook..”that’s teaching ReLIGION… well, no, its not. It is teaching a worldview, and a scientific perspective that are both contraty to what is taught in gummit skewlz…. as a religion (one must BELIEVE that the world was made lebenty leben million years ago, and that life came from nothing but primordial soup and some sparks, (whence came that soup?) and that toads have evolved from mosquitoes or fish by the “mystical POWER” of evolution…. which even Darwin claimed could not have been the mechanism to bring life to this planet, let alone develop the millions of species nw evident here. So, is Darwin god or is something else?

          The same standards that caused the recent opinion to allow tax funds to pay for privete/religious school educatioin should be applied tothe new case. They both turn on the same bases…..

      2. Precisely what right established by the US Constitution is being infringed by the Montana constitution? Unless you can point to a very specific conflict, the presumption is that federal statutes (and the Constitution) establish a floor which states may (or may not) choose to exceed.

        Note that the challengers in Zelman brought it as a First Amendment challenge. That is, they claimed that the OH program was an “establishment” of religion. They lost – meaning that the US 1A was not sufficient to stop the program.

        1. Free exercise, establishment of religion (or in this case, non-religion).

          1. I’m not seeing it yet. The US Constitution prohibits the establishment of religion. The Montana constitution prohibits the establishment of religion. Zelman said that despite that (federal) prohibition, school choice programs can include religious schools. This case says the Montana prohibition is stronger.

            In other words, the Montana protection against establishment of religion is stronger, not weaker. How does that protection infringe?

        2. a power not specifically delegated to a state, and not prohibited to FedGov, remains with the states, and the people. The US constitution specifically prohibits restricting the free exercise of one’s chosen religion. Montana’s constitution is subject to that of the US. For Montana to deny a recipienf of funds “for educatioin” the liberty to use those funds for HIS OWN child in the school of choice of the parent, regardless of its reigious affiliiatin or connexion, is contra the US Constitution. Free exercise thereof… buble believing father, at full liberty to be and live as such, prohibited the use of such fiunds for HIS CHILD”s education after the model HE chooses, is a violation of that Dad’s free exercies. And it does not trample on anyone ELSE”s rights, The denial of the free use of thse funds IS a denial of the right of that father tofull benefit, cnsistent with HIS religious pesuasuasion as protected under the Cond]stitution;s First ARticle of Ammendment.

          1. That is an interesting argument but it assumes a parental ownership interest in the funds. If, on the other hand, those funds are still owned by the state, then there is no free exercise implication. Dad is still free to exercise his religion as he thinks best – with his own funds.

    3. What a GREAT chance for Montana to file a U.S. Supreme Court claiming that Federal Funding for school is…….

      UNCONSTITUTIONAL within itself.

      And fix not only this problem but the billion in a half other ones that are the result of this communistic system.

      1. … After all;
        – I don’t see an “entitlement” right to free-education, half-funded education or any other education rights in the U.S. Constitution.
        – I don’t even see the enumerated power granting the federal government ANY control over the peoples education.

      2. You spoke of “Federal Funding” for government schools. Most funding of schools, is via state and local taxes. But I agree, we should separate school and state, just like we separate church and state. Schools are used to indoctrinate people, just like religions like to do. The government establishing one (school or church), gives it an unfair advantage overs the others, and leads to a constituency that promotes their (school or religion) at taxpayers’ expense. It’s tyranny, plain and simple. Freedom would be separation of school and state, with parents paying to educate their kids. And as a libertarian, I’d be much happier if the government just got out of the schooling business, while still taxing workers to provide a K-12 education for kids. There would still be problems about what schools qualify for government funding though.

        1. workers tax extractions don’t pay for schools. Most of that comes from local funds, property taxes, etc, but ALL Fed money earmarked for “education” tends to corrupt. When is the last time any FedBux got spent to help fund truly NEUTRAL content in education? Been a LONGGGG time…
          most FedBux are stolen from individuals and states then funnelled back to the state/local ed systems, with HUGE carveouts for “administration” and oher such nonsense… basically filling HUGE troughs for Fedworkers to slop up by the mere fact of their being FedGov employees, with the specific task of siphoining off those bux for their own use…. leave FedGov out entirely. Abolish Dept of Ed, completely.

  3. Sad for the kids, but I don’t see where state constitutions can’t vary from the federal in this regard. You can’t pass laws that treat one religion different than the others but Montana’s law treats them all the same. The feds grant the permission but we’re not yet at the point where everything that is permitted is mandatory.

    1. Montana’s law doesn’t treat all schools the same, it provides taxpayer funding but not for religious schools. The issue is a state government, not protecting our freedoms contrary to freedoms the Constitution grants to us. A secular school, takes a religious position (i.e. secularism, there shall be no religion, except anticlericalism, and atheism), excluding the others. Some argue that schools teaching about the religions in the world, the bible or other religious texts, is out of bounds for a government school (an anti-education position IMHO, but consistent with separation of school and state).

      With your argument, as long as we treated all black people the same (or just all minorities), then it’s OK for the government to discriminate against them.

    2. no it treats the mere association of a school with some religious organisation/denomination as different merely on the face of its association. That is the same as telling me I cannot participate i ANY relligious activity. If the funds are truly neutral, as in the case already decided, then they are NEUTRAL, and can be invested at the full discretion of the parent. WHY should the tax money paid by those parents be restricted so as to benefit ONLY those parents who choose to put that money into the hands of secular schools ONLY? That isa selective expenditure of those funds. Not cricket.

    1. This guy gets it.

  4. I don’t see a way around this. The Montana Constitution (1972) is pretty explicit.

    Section 6. AID PROHIBITED TO SECTARIAN SCHOOLS. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property 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 part by any church,
    sect, or denomination.
    (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.

    Section 7. NON-DISCRIMINATION IN EDUCATION. No religious or partisan test or qualification shall be required of any teacher or student as a condition of admission into any public educational institution. Attendance shall not be required at any religious service. No sectarian tenets shall be advocated in any public educational institution of the state. No person shall be refused admission to any public educational institution on account of sex, race, creed, religion, political beliefs, or national origin.

    The only way I can think of to argue for overturning these sections this is to say that religious institutions are being treated differently than non-sectarian institutions. Seems tenuous.

    1. I have been reading into it this morning, I think its a pretty interesting case. I would suggest reading about the zelman V. Simmons-Harris case, it is very similar. My understanding in summary is that programs must meet 5 points:
      Must have a valid secular purpose.
      Aid must go to parents, not schools.
      A broad class of beneficiaries must be covered.
      The program must be neutral with respect to religion, and there
      must be adequate non-religious options.

      I don’t think any of that means Montana’s constitution is unconstitutional. Maybe that’s what this case will decide.

    2. If SCOTUS determines that the Montana Constitution and/or laws are in conflict with the US Constitution, the US Constitution wins.

      If the Montana Constitution said that Catholicism was the mandatory state religion, we’d certainly expect that the US Constitution would preclude that.

      1. Nothing Root put forth in this article suggests any conflict. “Passing constitutional muster” at the federal level just means the program isn’t a violation of the US constitution. It doesn’t mean that every state has to do the same thing.

        1. Root mentioned Zelman v. Simmons-Harris (2002). Wikipedia states “The Court decided that the program did not violate the Establishment Clause of the First Amendment even if the vouchers could be used for private, religious schools.” While Root didn’t “put forth in this article” what conflict exists, he and the courts don’t want “to let the Constitution effectively mean two different things in two different places.”

          It’s the conflict over freedom of religion as enshrined first in the first amendment (even before freedom of speech) as “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. It’s a solid argument IMHO, that taxing people for schools, allowing private schools to get public funding, while prohibiting it for religious schools, is “prohibiting the free exercise” of one’s religion. That’s the conflict.

      2. It’s pretty CLEAR – Federal funding of education is UNCONSTITUTIONAL. This entire situation is the result of allowing our federal government to break the rules.

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