The Supreme Court is hearing a case regarding school choice this summer with national implications. In Espinoza v. Montana Department of Revenue, SCOTUS will decide whether the Montana Supreme Court acted unconstitutionally when it struck down a school choice program for the benefits that program provided to religious schools. This decision could also decide whether religious freedom in the United States allows for poor children to have the option of attending religious education.
A few years ago, the Montana legislature passed a law which allowed for scholarships in the form of tax credits, to be dispersed for private schooling. In spite of the popularity of this law, it was struck down before taking affect by the state supreme court. The reasoning was based on the Montana constitution, which prohibits public funding to “sectarian” schools. Due to the fact that the majority of Montana’s private schools are religious, the law was invalidated.
However, advocates of religious freedom have suggested that Montana’s law against “sectarian” education is based in bigotry. The history of the law, as will be illustrated below, makes this quite clear. Other objections that supporters of Montana’s scholarship program have raised, include the state’s violation of the equal protection clause. By shutting down the program for the reason it may indirectly help religious schools, Montana is not treating its religious citizens equally.
School choice opposition rooted in bigotry
It is important to note that the public school system, from its inception, promotes cultural and behavioral uniformity. The Montana law used by the state to stop the scholarship program is commonly referred to as part of the “Blaine amendments”. These amendments were sweeping the country in the late 1800’s and early 1900’s. Over 30 states still have a version of the amendment in their constitution. These laws basically exclude “sectarian” schools from government education funding.
While these laws were sweeping the nation, wave after wave of Catholic immigrants arrived from Europe’s shores. The second KKK was beginning to bloom in a violent reaction to Catholicism and immigrants, as well as their traditional black and Jewish targets. At this time, the public school system promoted Protestantism and forced children to read from the King James Bible. As the overwhelming Protestantism in public education grew, many Catholics wished to send their children to private schools.
The Klan and its allies were having none of this, and sought to destroy Catholicism by forcing all children into public education. The secondary concern of the Klan and hyper nationalists was the destruction of multiculturalism. The KKK and their allies in government began to pass laws abolishing private and religious schooling. This legislative push continued with the Blaine amendments, which prohibited the state from supporting “sectarian” education (aka Catholic education).
The oral arguments for this case were held this spring. Justices Sotomayer, Ginsburg, and Kagan appeared very hostile to the scholarship program. The liberal justices questioned whether or not the parents in this case had standing to sue. They also sought to differentiate this case from other decisions where the court ruled for religious freedom in schools.
Justices Alito and Kavanaugh came out forcefully against the state of Montana for striking down this program. Alito argued that the parents did in fact have standing to sue. Kavanaugh suggested that denying religious schools from the scholarship program limited religious expression. As usual, Chief Justice Roberts seemed to waver and joined the liberals in questioning the standing of the litigants to sue. It is unclear, however, how Roberts will rule in this case. The Chief Justice, along with Stephen Breyer, are basically swing votes.
What this case means for school choice
If the Supreme Court rules against Montana, it could open the door to increased funding for school choice programs across the country. A wider ruling is needed to extend the constitutional protections for religious freedom, in my view. The Blaine amendments that are present in over 30 states must be struck down. These amendments are rooted in clear religious bigotry and therefore violate the proper exercise of religious freedom. They also violate the equal protection clause of the 14’th amendment, which mandates equal treatment by the state for all individuals and groups.
The state of Montana clearly is discriminating against religious people by striking down a law because it indirectly helps religious schooling. The scholarship program in question would’ve helped many poor children afford quality education. The program was funded through private charity and tax credits, so it was not coercive in nature. Further, many public schools are failing miserably at everything from quality of learning to providing a safe environment for children. Allowing poor families the option to escape these failing schools and have a choice, is a key component in advancing liberty and economic mobility for everyone.
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Author: Jared Rabel
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