This article by Matt Barnum and Kalyn Belsha was originally posted on Chalkbeat on January 21, 2020.
The American Federation of Teachers and the Center for Education Reform don’t agree on much. But they both think a Supreme Court case, with oral arguments set for Wednesday, about whether a state can prohibit public funds from going to religious schools is a very big deal.
“The stakes truly don’t get any bigger than this,” said CER founder and CEO Jeanne Allen, who supports private school vouchers.
“If a decision goes in a certain way, it will be a virtual earthquake,” said AFT President Randi Weingarten. Weingarten and others say that if the conservative-leaning Supreme Court makes a sweeping ruling, it would “open up the floodgates” for public funding for private schools.
The case could have a range of implications, and no one knows how the justices will decide. The Court might invalidate provisions in state constitutions that prohibit public funds from going to religious schools. That’s part of what excites school choice proponents and worries public school advocates.
If that’s the result, though, it’s far from clear that many new voucher programs would result. That’s because voucher advocates have already prevailed in most state courts with a legal workaround.
“States that wanted to have a voucher law have already adopted voucher laws,” said Kevin Welner, a professor at the University of Colorado who is critical of vouchers. “Those horses are already out of the barn.”
Still, the case could pave the way for further-reaching decisions, affect how charter schools are approved, and reduce legal uncertainty that may have inhibited school choice programs.
The case being argued Wednesday, Espinoza v. Montana Department of Revenue, turns on a 2015 Montana law that encouraged residents to donate to an organization that offered stipends of up to $500 — also referred to as “scholarships” or “vouchers” — to help families pay for private school. Most private schools in Montana, and in the US, are religious. But Montana is one of 37 states that has a constitutional amendment limiting the use of public funds to support religious schools. (These are often referred to as no-aid amendments or Blaine amendments because they were promoted by Congressman James Blaine in the 19th century.)
Critics argue that these provisions came about as a result of anti-Catholic bias of the time — and continue to unfairly target religion.
“I think that it’s totally discriminatory that we cannot access those funds… simply because our kids go to a religious school,” said lead plaintiff Kendra Espinoza, whose two daughters attend a private Christian school in Montana.
No-aid amendments have long been targeted by advocates for school choice and religious liberty, including the Institute for Justice, a libertarian law firm. U.S. Secretary of Education Betsy DeVos, a champion of private school choice, has donated to the organization and weighed in against Blaine amendments, referring to them as the “last acceptable prejudice.”
Supporters say these rules were not predominantly the result of bias, and that Montana reaffirmed its no-aid clause in 1972 with no whiff of religious bigotry. And schools that receive vouchers have also come under criticsm for their own discrimination — a HuffPost investigation found that four of the 13 schools that participated in Montana’s program have explicitly anti-LGBT policies.
No-aid amendments could go out of the window if the Court adopts the plaintiffs’ logic.
“The Supreme Court’s decision in the Espinoza case might very well stop states from enforcing those provisions in the state constitutions,” said Welner. In a 2017 ruling, the Court moved in that direction, overturning a Missouri law that provided funding for playground repairs to secular private schools but not religious schools.
So if no-aid amendments disappeared tomorrow, will new voucher programs sprout up across the country? It’s hard to say. But 18 states with no-aid amendments already have voucher programs of some sort. In other words, these rules haven’t stopped the advance of publicly funded private school choice.
There are a couple of reasons why. States vary in how they interpret their no-aid clauses, and in some of those places, courts have approved regular voucher programs. Indiana, home to the country’s largest traditional voucher program (where participating schools are predominantly Christian), is one.
In other places, school choice advocates have come up with a legal workaround: vouchers funded through tax credits. In those programs, the state supports private schools — and forgoes tax revenue to do so — but technically no government money is involved. Florida is one example: it has both a no-aid amendment and the country’s largest publicly supported private school choice program, funded through tax credits.
Challenges to these tax-credit laws have been mostly unsuccessful, and voucher critics have racked up a string of losses in state courts and, in 2011, the Supreme Court.
Tax credits “grew up as a result of saying we need a different vehicle than vouchers in states that have legal issues,” Robert Enlow, the president of EdChoice, previously told Chalkbeat. (EdChoice is a funder of Chalkbeat.)
Montana’s program — which is a tax credit program, rather than a traditional voucher initiative — is the only one that’s been struck down in state court to date. The Supreme Court might effectively rule that religious schools can’t be blocked from participating in existing voucher programs. But the vast majority of voucher programs already accept religious schools.
Two exceptions are Maine and Vermont’s programs. Both states fund private-school tuition for students who live in sparsely populated towns without a local public school. Only secular private schools are eligible, though.
If the Supreme Court ruled in favor of the Montana plaintiffs, Maine and Vermont might eventually be required to allow religious schools to participate. (In fact, the law firm representing the Espinoza plaintiffs has brought a similar case in Maine.)
Hiner says another more subtle effect of such a ruling could be that policymakers might be more open to creating private school choice programs if the Court clarifies the legal issues at play.
“Any time you have a question about what the US Supreme Court thinks about a major constitutional issue, state lawmakers are going to proceed with a lot of caution,” she said. “The ruling, no matter what it is, will be taken to heart by state legislators.”
Welner also points out that tax credit vouchers have generally survived legal challenges in the politically red or purple states where they exist. On the off chance a voucher program passed in a dark blue state like California, its legal odds might be steeper. And some small voucher programs that haven’t faced legal challenge likely would if they expanded.
That’s where the latest Supreme Court case comes in: the decision could tie the hands of more liberal state courts inclined to look at such a voucher program skeptically.
Finally, charter schools could be implicated. A number of states have rules barring religious entities from applying for a charter, even if they plan to run the school without religious instruction. Those provisions could face increased scrutiny, depending on the Court’s decision.
For voucher opponents, a worst-case scenario would be the Supreme Court effectively forcing states to subsidize religious schools even in places that don’t have vouchers.
Welner and others say that is the logical extreme of what the plaintiffs are arguing. If it’s discriminatory to prevent families from taking vouchers to religious schools, why shouldn’t students in public schools be able to take their allotment of state funding to a religious school?
“There really is the possibility, however slight, that this case could upend the funding structure for public education,” said Preston Green, a professor of educational leadership and law at the University of Connecticut.
Others don’t buy that line of thinking.
“I’m interested that our opponents are laying out litigation for us to pursue,” said Leslie Hiner of EdChoice, which filed a brief supporting the Espinoza plaintiffs. But she said the logic doesn’t necessarily work, because the case focuses on a program that is generally open to private schools, not all money for public schooling.
In any event, few see mass voucherization as a likely outcome, since it would send shockwaves through the country’s system of public education.
“I can’t see the court doing that,” said Welner. “The court isn’t oblivious to policy.”
A narrower ruling is more likely. But the Court often moves incrementally, so the decision’s full implications might not be known for decades.
“This case could gradually erode the grounding for keeping public funds specifically and totally for just public education,” said Green. “Even if this doesn’t happen, you could have language that could move us even more in that direction.”
Chalkbeat is a nonprofit news site covering educational change in public schools.