Education Week - July 15, 2020 - 8

U.S. Supreme Court Rejects Prohibition on
Tax-Credit Scholarships for Religious Schools
A sharply divided U.S. Supreme
Court has ruled that a Montana state
constitutional provision barring aid
to religious schools discriminated
against those schools and families
seeking to benefit from a state tax
credit for scholarship donations.
"Montana's no-aid provision bars
religious schools from public benefits
solely because of the religious character of the schools,"Chief Justice John G.
Roberts Jr. wrote for the court in a 5-4
decision. "The provision also bars parents who wish to send their children
to a religious school from those same
benefits, again solely because of the
religious character of the school."
The decision came in Espinoza v.
Montana Department of Revenue (Case
No. 18-1195), which involves a $150
state tax credit for contributions to
funds that provide scholarships for
students to attend private schools, including religious schools.
The chief justice's opinion appeared to cast doubt on provisions
in 38 state constitutions that bar aid
to religious schools.
"A state need not subsidize private
education," Roberts wrote. "But
once a state decides to do so, it cannot disqualify some private schools
solely because they are religious."
U.S. Secretary of Education Betsy
DeVos, a longtime private school
choice advocate who had attended
the January arguments in the case,
called the decision "a historic victory for America's students."
"This decision represents a turning point in the sad and static history
of American education, and it will
spark a new beginning of education
that focuses first on students and
their needs," DeVos said in a statement. "I'm calling on all states to now
seize the extraordinary opportunity

Manuel Balce Ceneta/AP

By Mark Walsh

The U.S. Supreme Court's 2019-20 term included several cases with implications for K-12 education.

to expand all education options at
all schools to every single student in
America."
But Randi Weingarten, the president
of the American Federation of Teachers, which supported the state and its
no-aid provision, said the decision was
"a seismic shock that threatens both
public education and religious liberty."
"Never in more than two centuries
of American history has the free exercise clause of the First Amendment
been wielded as a weapon to defund
and dismantle public education," Weingarten said in a statement.
Two of the three parents who challenged the state's decision had attended the Supreme Court arguments

in January with their children: Kendra
Espinoza and her daughters Naomi
and Sarah; and Jeri Anderson and her
daughter, Emma.
On June 30, the mothers were
elated by the Supreme Court decision.
"We were yipping and hollering this
morning," Espinoza said in a conference call with reporters. "Today is a
big victory for our family and for so
many other families."
Anderson said "having access to
these scholarships is going to make a
tremendous difference to Emma's future education. She is at a school where
she is thriving and which she loves."
The three children attend Stillwater
Christian School, a private religious

school in Kalispell, Mont.
Gov. Steve Bullock of Montana, a
Democrat who had allowed the tax
credit program to go into effect without
his signature but had joined the Department of Revenue in defending the
state constitution's no-aid provision,
said in a statement that "Montanans
have a constitutional right to a quality
public education. I'm disappointed in
today's decision, and will continue the
fight for public education in Montana."
The chief justice's opinion was
joined by Justices Clarence Thomas,
Samuel A. Alito Jr., Neil M. Gorsuch, and Brett M. Kavanaugh, with
Thomas, Alito, and Gorsuch filing
concurring opinions.

The court's more-liberal members
issued or joined three separate dissents, offering different grounds.
Justice Ruth Bader Ginsburg, in a
dissent joined by Justice Elena Kagan,
said there was no burden put on the
First Amendment free exercise of religion rights of the parents or religious
schools in the case because the Montana Supreme Court had struck down
the tax credit program in its entirety
based on the no-aid provision.
"Accordingly, the Montana Supreme Court's decision does not place
a burden on [parents'] religious exercise," Ginsburg said. "There simply
are no scholarship funds to be had."
Justice Sonia Sotomayor, in a dissent for herself, said the majority was
wrong to decide the merits of the case
because the tax credit program was
struck down by the Montana Supreme
Court in its entirety.
"Today's ruling is perverse," Sotomayor said. "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."
Justice Stephen G. Breyer wrote a
dissent, joined by Kagan in part.
"The majority's approach and its
conclusion in this case, I fear, risk the
kind of entanglement and conflict
that the [First Amendment's] religion clauses are intended to prevent,"
Breyer wrote.

Implications for Other States
The Montana program was passed
by a Republican-majority legislature
in 2015 and modeled on similar programs in 18 other states.
Montana's revenue department,
which administers the tax credit,
issued an administrative rule that
barred the scholarships from being
used at religious schools. It cited a

The Supreme Court and Education 2019-20
In a term marked by disruption due to the coronavirus pandemic, the U.S. Supreme Court pressed on with its work
and issued decisions that will be felt in public and private schools in such areas as separation of church and state,
employment discrimination, and immigration. Here are the top rulings of interest to the education community.

State Aid to Religious Schools

Employment Laws
in Religious Schools

LGBTQ Rights

Immigration

In Bostock v. Clayton County, Ga., the

In Department of Homeland Security v.

Revenue, the court held 5-4 that the

In Our Lady of Guadalupe School v. Morrissey-

justices ruled 6-3 that an employer who

Regents of the University of California,

application of Montana's state constitutional

Berru and St. James School v. Biel, the court

fires a worker based on sexual orientation

the court ruled 5-4 that the Trump

provision barring aid to religious schools to

held 7-2 that the First Amendment's religion

or gender identity violates the prohibition

administration's 2017 cancelation of the

invalidate a tax credit program for private

clauses bar federal courts from hearing

against sex discrimination in Title VII of

Deferred Action for Childhood Arrivals

school scholarships discriminated against

employment-discrimination claims from

the Civil Rights Act of 1964, the main

program was carried out in an "arbitrary

religious schools and parents seeking to

teachers at religious schools who have at

federal job-bias law. The decision holds

and capricious" manner in violation of

use the scholarships. That application of the

least some role in teaching the faith. The

implications for school districts as

the Administrative Procedure Act. The

state constitutional provision violated the

decision provided further definition of

employers and in ongoing legal battles over

Obama-era DACA program offers relief

U.S. Constitution's guarantee of free exercise

the "ministerial exception" that religious

the rights of transgender students.

from deportation for some 700,000 eligible

of religion, the court held.

institutions may raise in response to

recipients, allowing them to legally work

job-bias claims.

and go to school.

In Espinoza v. Montana Department of

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