Supreme Court lifts ban on state aid to religious schooling

and By Mark Sherman Associated Press

WASHINGTON (AP) — The Supreme Court on Tuesday made it easier for religious schools to obtain public funds, upholding a Montana scholarship program that allows state tax credits for private schooling.

The court’s 5-4 ruling, with conservatives in the majority, came in a dispute over a Montana scholarship program for private K-12 education that also makes donors eligible for up to $150 in state tax credits.

The Legislature created the tax credit in 2015 for contributions made to certain scholarship programs for private education. The state’s highest court had struck down the tax credit as a violation of the Montana constitution’s ban on state aid to religious schools. The scholarships can be used at both secular and religious schools, but almost all the recipients attend religious schools.

Kalispell parents Kendra Espinoza and Jeri Anderson and Bigfork parent Jaime Schaefer are the local faces of the Montana case regarding religious schools and funding. What began as a lawsuit in December 2015 (Espinoza versus the Montana Department of Revenue) became a broader issue that had school choice, separation of church and state, public and private school advocates across the nation weighing in and waiting for the Supreme Court to decide whether or not invalidating a religiously neutral student-aid program violates the U.S. Constitution’s religion clauses or equal protection clause.

The parents’ involvement in the case began five years ago when the Montana Legislature passed an unprecedented law providing a tax credit, up to $150, for donors supporting scholarships for private schools. The children of Espinoza, Anderson and Schaefer receive scholarships to help cover the cost of tuition to attend Stillwater Christian School in Kalispell.

In December 2018, the Montana Supreme Court reversed a Flathead District Court ruling in favor of the three parents and invalidated the entire tax-credit scholarship program. Later, the U.S. Supreme Court announced it would review the state court ruling.

U.S. Supreme Court Chief Justice John Roberts wrote the opinion that said the state ruling violates the religious freedom of parents who want the scholarships to help pay for their children’s private education.

“A state need not subsidize private education. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious,” Roberts wrote.

Justice Sonia Sotomayor wrote in dissent that the high-court ruling “is perverse. Without any need or power to do so, the Court appears to require a State to reinstate a tax-credit program that the Constitution did not demand in the first place.”

Parents whose children attend religious schools sued to preserve the program.

Roughly three-dozen states have similar no-aid provisions in their constitutions. Courts in some states have relied on those provisions to strike down religious-school funding.

Advocates for allowing state money to be used in private schooling said the court recognized in its decision that parents should not be penalized for sending their children to schools that are a better fit than the public schools.

“This opinion will pave the way for more states to pass school choice programs that allow parents to choose a school that best meets their child’s individual needs, regardless of whether those schools are religious or nonreligious,” said Erica Smith, a senior attorney with the Institute for Justice, which represented the parents in their court fight.

HOWEVER, THE president of the Montana Federation of Public Employees, which counts more than 12,000 teachers and other school workers as union members, called the decision “a slap in the face” to its members and the communities they serve.

“Today’s decision violates Montana’s commitment to public education, our children, and our constitution. Extremist special interests are manipulating our tax code to rob Montana children of quality education while padding the pockets of those who run exclusive, discriminatory private schools,” union president Amanda Curtis said.

Montana Office of Public Instruction Superintendent Elsie Arntzen also weighed in on the ruling.

“I appreciate that the Supreme Court has reaffirmed the Montana Legislature’s intent to provide families with equal access to a tax credit to support the education that is best for their child,” Arntzen said in a prepared statement. “I strongly support Montana’s public schools and have always advocated for the statutory promise of full funding for our K-12 public schools. I also support opportunities for families to send their children to the school that best fits their needs and their ability to have equal access to a tax credit which supports that education. Montana has a strong history of collaboration between our public, private, and homeschool education systems.”

Justice Samuel Alito pointed, in a separate opinion, to evidence of anti-Catholic bigotry that he said motivated the original adoption of the Montana provision and others like it in the 1800s, although Montana’s constitution was redone in 1972 with the provision intact. Justice Brett Kavanaugh, whose two daughters attend Catholic schools, made a similar point during arguments in January when he talked about the “grotesque religious bigotry” against Catholics that underlay the amendment.

The decision was the latest in a line of decisions from the Supreme Court, which now includes Trump appointees Neil Gorsuch and Kavanaugh, that have favored religion-based discrimination claims. In 2014, the justices allowed family-held, for-profit businesses with religious objections to get out from under a requirement to pay for contraceptives for women covered under their health insurance plans. In 2017, the court ruled for a Missouri church that had been excluded from state grants to put softer surfaces in playgrounds.

The high court also is weighing a Trump administration policy that would make it easier for employers to claim a religious or moral exemption and avoid paying for contraceptives for women covered by their health plans. Still another case would shield religious institutions from more employment discrimination claims.

The Supreme Court also has upheld some school voucher programs and state courts have ratified others.

The high court ruling was a moment Espinoza and Anderson have waited years for since the 2015 lawsuit. In January this year, the two parents and their daughters were at the Supreme Court in Washington, D.C., listening to oral arguments.

On Tuesday morning, Espinoza said she anxiously watched the Supreme Court website for the release of the ruling. When it uploaded, she began reading through the documents when she received a text from the Institute for Justice, whose attorneys represented the families.

Both Espinoza and Anderson spoke to the Daily Inter Lake in phone interviews.

“It’s huge. It’s almost mind-blowing that history has been made,” Espinoza said when she learned the ruling landed in their favor. “The ruling opens up opportunities for children around the nation. ..Truly our First Amendment rights were upheld.

“We have that option to receive scholarships without discrimination — not just our family, and really, truly, not just Montana — but all of America will be affected by this,” Espinoza added.

Anderson said it took a moment for ruling to sink in.

“It was like wow, it’s happened. It’s happened,” Anderson said.

“The ruling really shows there was discrimination,” she said. “Just because the school has a religious affiliation shouldn’t have mattered. It’s what was best for our family. Where a small scholarship goes or doesn’t go shouldn’t be caught up in all of that.”

While Espinoza and Anderson hadn’t anticipated the case would reach the nation’s highest court, the two mothers remained committed to being the “face of the case” as it moved through the state and federal court system.

“We had to have that long-term vision and look to the future because this was so much bigger than ourselves,” Espinoza said. “What kept us going is we had the opportunity to really make a difference for so many families.”

Anderson agreed.

“To be part of something that is going to be able to open up school choice to kids, seeing firsthand what it’s done for [my daughter] Emma, seeing parents being able to benefit from this — it’s an incredible feeling,” Anderson said. “I wouldn’t change anything on this journey. I was glad to be part of it.”

“I hope it’s a ripple effect,” Anderson said in the national debate on school choice and funding. “I hope it’s the ripple that just continues.”