School Choice

Families Ask the Supreme Court to Stop Discrimination Against Religious Schools

Kendra Espinoza's daughters rely on a state-supported scholarship program to attend the school of their choice.

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Kendra Espinoza's two daughters attend a private religious school in Kalispell, Montana, that their family really can't afford—even after Espinoza took a night job as a janitor. The Espinozas were thrilled when they learned they were eligible for a state-supported scholarship program.

The girls enrolled in Stillwater Christian School and the family hoped they would be able to rely on Big Sky Scholarships to help cover some of their costs. The program provides support only to children from low-income families or those with disabilities, at both religious and secular schools. The scholarships are made possible in part by a tax break the state offers to donors who support scholarship programs. Despite the fact that the program explicitly allowed the scholarships to be used at any private school, the Montana Department of Revenue interpreted the state constitution to forbid the participation of religious schools. That set off a cascade of challenges, including Espinoza's.

Montana's reaction to challenges alleging discrimination was to shut it down for all participants, a blow not just to the parents whose children attend religious schools, but to everyone who benefitted from those scholarships.

Back in 2002, the Court ruled that the U.S. Constitution allowed religious schools to participate in state scholarship programs. Today, Espinoza and her lawyers from the Institute for Justice are asking that the Supreme Court go one step further and prohibit state-backed scholarship programs from discriminating against those same schools in Espinoza v. Montana Department of Revenue. Reason Foundation, the nonprofit that publishes Reason, joined an amicus brief in support of her case.

Interview by Katherine Mangu-Ward. Edited by Ian Keyser. Intro by Meredith Bragg. Cameras by Meredith and Austin Bragg.

Music: 'Pink Horizon' by Chris Haugen

Photos: CHUCK KENNEDY/KRT/Newscom; Ivan Pendjakov/agefotostock/Newscom

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  1. Kendra Espinoza’s two daughters attend a private religious school in Kalispell, Montana, that their family really can’t afford—even after Espinoza took a night job as a janitor.

    That’s not really a good idea.

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  2. Montana’s reaction to challenges alleging discrimination was to shut it down for all participants, a blow not just to the parents whose children attend religious schools, but to everyone who benefitted from those scholarships.

    Live by the state, die by the state.

    1. “The scholarships are made possible in part by a tax break the state offers to donors who support scholarship programs.”

      So roughly, as I understand it, donating to a private school is a partial alternative to paying for the public schools.

      The money doesn’t go into the state treasury and then go out to favored applicants, the private donor decides, and gets cut a break on support of the government schools, as opposed to paying double for both private and public school education.

      1. Are you saying these religious schools are privately funded? Sure doesn’t seem that way.

        1. Currently? Yes, privately funded.

          The debate was whether or not it was constitutional to deny the private school’s participation in a state-subsidized scholarship because of it’s religious affiliation.

          They won that debate: the Montana Supreme Court agreed it was discriminatory. But because allowing participation by the religious school would have violated the Montana constitution, the only way out was to end the program all-together.

          The debate now is whether or not it’s constitutional to end a state-subsidized scholarship program because the program cannot be in compliance with both the state constitution and the Constitution at the same time.

        2. “Are you saying these religious schools are privately funded? Sure doesn’t seem that way.”

          The statute says you get a tax break for donating money to certain (private) scholarship organizations which in turn give money to private schools.

          Leftists would call that a tax subsidy. Just like the charitable donation in the federal income tax code. So if you want to call that publicly funded go ahead.

  3. Disclaimer: I don’t have strong feelings about this case. Whichever way it turns out isn’t that big a deal.

    That said, it’s also ridiculous. While they originally had a valid discrimination claim, that was handled when the Montana Supreme Court agreed that it was discriminatory and declared it was an unconstitutional program under the state constitution, ending it.

    Which is why they aren’t arguing to the SCOTUS that they’re being discriminated against by exclusion, they’re now arguing that they’re being discriminated against by not being entitled.

    Freedom of Religion does not mean Entitlement to State Funds. It might mean that a program can’t baselessly exclude otherwise-qualified religious groups, but you can’t demand a program be invented just to shovel money your way.

    But as I said, I don’t have strong feelings about this case. But it’s still ridiculous.

    1. You appear to have a loose at best grasp of the case.

    2. Well, if outcomes are all that matter, I agree that an entitlement outcome would be a bad one.

      But I think they are also seeking to overturn the reasoning behind the decision. The MT Supreme Court based their decision almost entirely on their Blaine Amendment – and I think their are good arguments that it was based in anti-religious animosity and probably should be struck down. So even though the outcome in this case would be one I disagree with, it would set a precedent that might be more important for future cases.

      1. Hence why I’m not that worried about it. The obvious outcomes (SCOTUS strikes down the Blaine Amendment and reinstates the program, or the SCOTUS says no action is needed) don’t bother me.

        So unless the SCOTUS decides to try and be clever, this one doesn’t bother me.

    3. Entitlement to State Funds

      Because, of course, not taking is giving.

      1. The vehicle for the “scholarships” is unnecessarily complicated†, but the end result is the same: using state money to subsidize private schools. This really isn’t in question.

        So I’ll have to beg pardon, but in this case, yes: no one is entitled, by the First Amendment of the United States Constitution or any state’s constitution, to this or similar vehicles to funnel state money to private schools.
        ________
        †It involves tax-refund credits and two levels of donations.

        1. It’s really not that complicated, though. People donate to a fund that provides scholarships to schools as a charity. The government gives the donors a tax break for donating to that charitable fund. Except the government is saying they can’t have a tax break unless the funds they’re donating to refuse to provide scholarships to schools affiliated with churches. It’s only funneling “state money to private schools” if you assume that the money people donate to funds is properly the states. And that the state not taking their money is giving them money.

          1. Except the government is saying they can’t have a tax break unless the funds they’re donating to refuse to provide scholarships to schools affiliated with churches.

            Nope.

            The Montana Supreme Court ended the entire program. No one gets the tax-break.

            These folks are saying that a lack of religious discrimination is not enough, and that they are now entitled to a tax break, and that not giving them a tax break (that currently no one is getting) is religious discrimination.

            And that the state not taking their money is giving them money.

            Look dude, while I understand libertarianism’s fundamental disagreement with taxation, I’m not persuaded. So if you want to have a wank over this, find someone else to join you, I’m not your guy.

    4. Freedom of Religion does not mean Entitlement to State Funds

      No, but it does mean that governmental decisions shouldn’t be based on an animus towards religion, as these decisions plainly were.

      1. “Shouldn’t”? Sure.

        But unless you meant to use a stronger word, that doesn’t mean “can’t”.

        By my reckoning, you can use whatever animus you want to guide decisions so long as you can craft the resulting law in a way that is, on it’s face, non-discriminatory, and keep the animus out of official statements.

        Disparate-impact cases are notoriously hard to win, after all.

  4. Schools that teach nonsense, suppress science, and warp history to flatter religion at the expense of reality — creationism, the Bible as nonfiction, evolution as a hoax from hell, Christian-flattering stories — should never be funded by taxpayers.

    Dressing up ignorance, backwardness, and bigotry in superstition does not improve ignorance, backwardness, and bigotry. Mainstream American should never have begun to provide accreditation to slack-jaw schools.

    If you don’t like the public road in front of your house, buy a helicopter. If you don’t like the public school, choose a private school (that complies with reality-based standards that protect children). But don’t expect taxpayers to fund your anti-social preferences.

    1. I don’t think someone who never successfully attended school beyond the 8th grade is really in a position to comment on this issue. So, you probably should sit this one out there pal.

    2. That backwoods school probably teaches there are only two genders and other superstitious nonsense from the early 2000s. Science is ever evolving by way of our Betters’ Twitter likes

    3. If you don’t like the public road in front of your house, buy a helicopter.

      Why in the world would there be a public road in front of my house? Next thing you know, ignorant lowlifes like you would demand to be allowed to come into our neighborhood.

      Dressing up ignorance, backwardness, and bigotry in superstition does not improve ignorance, backwardness, and bigotry.

      Truer words were never spoken; you and the progressive movements should take them to heart and apply them to your belief system.

    4. Many religious schools produce graduates far better educated than public school graduates. Arty might know that we’re he not such an ignorant progtarded ass clown.

  5. Do they have standing?

    Religious school funding is constitutional. But private school funding is not mandatory.

    Montana eliminated the alleged discrimination. Ending the program seems a legitimate remedy. If the question is whether the Montana constitution allows religious school funding, at best SCOTUS could say it can’t ban it? It can’t/shouldn’t require it.

    1. Montana’s reaction to challenges alleging discrimination was to shut it down for all participants, a blow not just to the parents whose children attend religious schools, but to everyone who benefitted from those scholarships.

      That is not a fair representation of the facts in this case. Montana didn’t shut the whole program down. Had the leglistature just ended the program, there would not be an an issue here. That is not what happened.

      What happened was the State Supreme Court held the entire program to be invalid because it violated a section of the Montana Constitution known as the “Blaine Amendment”. The Blaine Amendment prohibits the state from providing aid to religious groups. The Montana Supreme Court ruled that since this program benefited religious schools, it violated the Montana State Constitution’s prohibition against aid to religious organizations and therefore was invalid.

      So the plaintiffs’ are appealing that rule. The argument is that the Blaine Amendment by effectively outlawing even facially neutral aid which equally benefits religious non religious organizations violates the free exercise clause.

      This article is very poorly written. If you read it and don’t know any better, you would think the Montana Legislature killed the entire program and now these people are whining about it. That is not what happened.

      1. If you read it and don’t know any better, you would think the Montana Legislature killed the entire program and now these people are whining about it. That is not what happened.

        Correct. It’s the Montana Supreme Court that killed it, and now these people are whining about it.

      2. So John, I read the exchange between you and Escher. Now let me ask you this: Why isn’t the correct resolution here at the state level?

        It seems to me the MT Supreme Court resolved this. They killed the program that was problematic on anti-discrimination grounds.

  6. I think the plaintiffs are correct in this case. What is going on here is the section of the Montana Constitution as interpreted by the State Supreme Court is singling out religious institutions. According to the lower court ruling, the state cannot give administer any aid program that could include religious organizations as beneficiaries. Even if the program is totally neutral and not aid directly to the religious institutions only. No other sort of institution is subjected to such a prohibition.

    Imagine a state trying to create such a rule in some other context like race. The state says that no state aid can ever go to any organization whose membership is over 50% black. If any aid program makes such organizations illegible, the entire aid program is illegal under the state constitution. That is what is going on here only instead of race it is religion. When you look at it that way, it becomes pretty clear the state is in the wrong here.

    1. Just out of curiosity, why did you choose race for your analogy rather than something people can actually choose? Like gender.

      1. Because race is a protected class just like religion. It doesn’t matter that you choose to follow a religion and are not born that way. The Constitution prohibits the government discriminating on the basis of that choice just like it prohibits discriminating on the basis of race.

        A lot of people on here either can’t or refuse to grasp that. Religion really does get special treatment in the Constitution that other activities do not get.

        1. Religion really does get special treatment in the Constitution that other activities do not get.

          Specifically – Congress shall make no law respecting an establishment of religion. now incorporated via the 14th.

          I have a lot of respect for parents who want to include religion in their kid’s education. And not just Sunday school but incorporated into regular curriculum. But that is not what that Big Sky Scholarships program is about from their own web site. the article is deceptive as usual re ‘tax breaks’. It is a tax credit – where the state favors particular people by letting them divert their general tax burden to specific religious institutions (a separate school being the definition of an institution) of their choice.

          I like the idea of tuition scholarships or somesuch at the K-12 level. But the libertarian tendency of providing a new philosophical justification to the old segregationist tactic of shutting down public education entirely post-Brown is simply abhorrent. It is not even remotely classical liberal. It is 19th century cultural conservative combined with mid-20th century venom.

          The way to set up that scholarship stuff is to separate school FACILITIES from school CURRICULUM/TEACHING. The facilities are not religious. They are public facilities funded by property tax (because they raise local land value whether one has kids or not) and the spending arguments can be the usual ‘we don’t need a new swimming pool’ or ‘let the kids clean their own dishes at lunch’ sort of stuff. The curriculum/teaching stuff is where 90% of the conflict re ‘choice’ occurs – but is a small part of total cost. In fact there is no real (meaning nonDeRp) conflict whatsoever if a classroom teaching the bible/Latin/creationism is immediately adjacent to a classroom teaching evolution/spanish/postqueerMarxism at the same damn time. And the costs of that are what tuition scholarship programs should be for. Not ‘rent’.

          As an aside – the Stillwater Christian School in question looks like it has an interesting multiyear academic focus. It should have the ability to offer classes of its structure in all the public schools in that county – not just run some crony/rent/tax game as a separate facility.

      2. Also, restrictions on religion are subject to strict scrutiny. Discrimination based on sex is subject to intermediate scrutiny. So sex is not analogous here. Race or national origin are the analogies.

        1. But sex and gender are different! I thought that would give it away.

    2. … to be clear, John, are you of the opinion that public schools can’t choose to end all student clubs in order to shut down a GSA? While this may or may not be a break for you†, it is a break from precedent that “take your ball and go home” is a valid choice.

      For that matter, many libertarians openly advocated that the answer to same-sex marriage was to take away marriage rights, responsibilities and benefits from everyone. That this would largely be motivated by animus never bothered any of you.

      So I have to beg pardon, but “take your ball and go home” has always been a valid option when the government doesn’t like the game anymore.
      ________
      †I’m not sure Reason has ever written an article on one of those cases.

      1. For that matter, many libertarians openly advocated that the answer to same-sex marriage was to take away marriage rights, responsibilities and benefits from everyone.

        You’re confusing political and legal choices.

        Politically, the right thing to do is to get the state out of marital arrangements altogether. That’s good for everybody, including people in “traditional marriages”. Those “marriage rights” you talk about are destroying traditional marriage.

        Legally, under the US Constitution and equal protection, arguably, any such “marriage rights” need to be available to any two consenting adults regardless of gender.

        That this would largely be motivated by animus never bothered any of you.

        Libertarian opposition to state sponsored marriage is in no way motivated by “animus”; to the contrary, the institution of traditional marriage is being corrupted by the state, and to restore it, we need to free it from state interference.

        1. You’re confusing political and legal choices.

          Only if you skipped over the first paragraph. By the time you get to the paragraph you quoted, I was talking about the general idea of the acceptability of “take your ball and go home”.

          Libertarian opposition to state sponsored marriage is in no way motivated by “animus”

          Didn’t mean to imply it was.

          But simply put, if y’all had managed to pull it off, it wouldn’t have been on the weight of your philosophical arguments, it would have been on the weight of “stick it to the gays”. No reason to lie to yourself on this, you already know you can’t persuade people on the merits you claim are obvious.

          1. Libertarians have long made the argument that government marriage is an improper restriction on contract. And they have a good point about that. The expansion of gay marriage did not affect that argument.

            What happened was most Libertarians walked away from that argument to support gay marriage because they like gays and hate religious people and saw gay marriage as a way to virtue signal and stick it to people they don’t like. The truth is exactly the opposite of what you claim.

            1. The truth is exactly the opposite of what you claim.

              Can you please be specific on what you think I said is wrong?

              The post you’re actually responding to has one “claim”, which was a “what if…?” one. Or are you seriously claiming that y’all had a path to victory that didn’t rely on animus?

              1. If you believe government marriage is a restriction on freedom, then you don’t advocate its expansion in the name of equality. That makes no sense. Restrictions on freedom are a bad thing. If the country had a law that dictated the nature of employment contracts men could enter into but not women, the solution isn’t to expand that system to cover everyone.

                That is what the pro gay marriage libertarians did. Instead of advocating for a contract system for gays, they advocated to include gays in the government marriage system in the name of equality. And that is completely counter to their opposition to government marriage.

                1. … so to be clear, in declaring “the truth is exactly the opposite of what you claim”, the claim you were referring to was…

                  For that matter, many libertarians openly advocated that the answer to same-sex marriage was to take away marriage rights, responsibilities and benefits from everyone.

                  ?

                2. Most people are fine with gay marriage because it is a personal choice and harms nobody. Really most folks including libertarians shrug their shoulders and don’t care if gay people get married. It has nothing to do with religion.

                  It also has nothing to do with the libertarian idea that the state should not be in the marriage business at all. People want it so it ain’t going anywhere.

        2. As long as the state operates the courts, you can’t get the state out of marital arrangements altogether. What happens when someone takes to court the question of whether A and B are married?

          1. If there are no legal rights, responsibilities, or benefits associated with marriage, why would the court care if A and B are married?

            There are problems with the libertarian position here. This isn’t one of them.

            1. Because there are a lot of contractual arrangements that turn on the question of who’s married to whom, if at all.

              Marriage is a necessary evil in individualist jurisprudence. For most purposes, liberty is best served by treating individuals as legally responsible and capacious. That’s why we refer to “individual liberty”. However, it would be impracticable not to have some exceptions constituting family law, for cases wherein it makes better sense to treat a family as a legal entity. There need to be provisions for treating the individuals in a family as individuals, but also provisions for treating a family or household as a unit.

      2. So I have to beg pardon, but “take your ball and go home” has always been a valid option when the government doesn’t like the game anymore.

        Sure it is. But that is not what is happening here. The court says that it is now illegal to have any aid program which religious institutions might be eligible to participate. This isnt’ about ending one aid program. This is about declaring all aid programs that include religious institutions illegal.

        1. I’m going to have to ask for a cite on that.

          Every article I’ve read on the subject was that the the scholarship program was the only one shut down.

          1. The site is the court decision. Go read it. It only shut this program down because it was at issue in the case. The reason why it struck it down was because it indirectly benefited religious institutions. That means that any aid program that does that is also illegal.

            1. That’s not a cite, that’s speculation and supposition.

              1. Which part of “go read the decision” do you not understand? And it is not a supsesition. It is what it says. You can use google. If you are too stupid to find the case, I doubt you will understand it anyway.

                Beyond that, do you deny that the program was struck down? Do you not understand how court cases work. You tell me how the case could strike just this program down and not be applicable to every other analogous program?

                Are you this dumb or are you just being an asshole and refusing to concede a point you can see you lost?

                1. Are you this dumb or are you just being an asshole and refusing to concede a point you can see you lost?

                  I’m smart enough to recognize when you’re letting your anger confuse you.

                  Go grab a beer and chill. This case ain’t worth it dude.

                  1. What is making me angry is your inability to understand the decision. I have zero patience for it. I explained to you the decision and what it means and why they appealed to it. If you don’t believe me, go read the decision yourself and explain what I have gotten wrong.

                    If you can’t do that, then concede the point. As it is you are just wasting my time and showing yourself either too stupid or to dishonest to understand this case. I have tried my best to explain it to you but you seem either unwilling or unable to understand it. And that kind of rank stupidity pisses me off. I really does.

                    1. What is making me angry is your inability to understand the decision.

                      If “understand the decision” means believing “This is about declaring all aid programs that include religious institutions illegal”, then the plaintiff’s lawyers arguing this to the SCOTUS don’t “understand the decision” either.

                      And I have to beg pardon, but they are way more credible then you.

  7. Religion has always been and will continue to be the demise of humanity! Believe in what ever you want but keep it behind your church doors!

    1. Yep, those religious nut jobs Lenin, Mao, Stalin, Hitler, Pot, Kaiser Wilhelm, etc really did a number on the 20th Century

    2. I can’t tell whether you are serious or sarcastic.

      Christianity is what made the West a peaceful, prosperous, and educated society. I say that as a gay atheist.

    3. That anti religious screed is just an excuse to employ bigotry against the faithful, and remove obstacles to progressive wickedness.

      1. You do realize that every major “anti religion” law, policy, and amendment in this country was pushed by a different religion, right?

        Even the Blaine Amendment in question wasn’t pushed by atheists, it was pushed by anti-Catholic Christians.

  8. “Montana’s reaction to challenges alleging discrimination was to shut it down for all participants, a blow not just to the parents whose children attend religious schools, but to everyone who benefitted from those scholarships. ”

    You can’t say that’s not fair. If giving state money to religious schools was allowed, the Christians in Montana would have to allow their taxes to support Hebrew day schools and Muslim madrassas too. Someone could open a Pagan school and teach kids about the Goddess. Christians might object to their taxes supporting that. Of course there are very few non-Christians in Montana.

  9. Why is the Government handling peoples personal check-book when it comes to education????

    It’s amazing how the game of “this debit/credit line is Unconstitutional” has become the newest fad of the 21st Century. You’d think we were the most communist country in the world.

  10. Lutheran school here predates public education by 16 years. No tuition. Unwritten rule is you contribute to the church the stated tuition amount, if tuition had to be charged, and take the tax deduction. Unfortunately only goes through grade 8. Embarrissingly 8 of the last 10 valedictorians were formerly Lutheran School graduates.

  11. Well, this is the kind of thing that happens when government uses the tax code as a carrot-and-stick to influence (manipulate) the social and economic behavior of the citizenry and private business ,,,, rather than solely as a means to equitably spread the cost of paying for legitimate costs of operating the government.

  12. I can fully understand the feelings of this family. I’ve had a similar situation in my school time. I have only mom and our financial circumstances haven’t been very good at that time. We haven’t been eligible for a state-supported scholarship program, and it has been a little bit hard time for our small family. For as long as I can remember I’ve always liked learning, reading and getting something new, and my mom wants to give me the best, as I think every mother, so she must take a second job in order to pay for my learning. In my senior school, I’ve also started to earn some money and write articles for the Paperial, the college paper writing service, trying to help my mother. Now I am a student and getting a pell grant, and still working as a writer I already can help my mom financially. I’m totally sure that the government must reconsider the conditions of the scholarship procedure to give talented children to get high-leveled education in the schools of their own choice. Cause good education is a fundamental thing and it must be available for everyone, especially if a child has a desire to learn.

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