The court drew its decision narrowly when ruling against a Montana tax break that excluded religious schools. But denominational school advocates will push a broad application.
WASHINGTON — A Supreme Court ruling on Tuesday against Montana’s exclusion of religious schools from a state scholarship program may have been drafted narrowly, but the victory for denominational education has breathed new life into far broader efforts to use public funding for private and parochial schools.
In a 5-4 decision, the court ruled that the state of Montana could not use a provision in its Constitution to exclude religious schools from its private school scholarship program. While the court’s ruling did not go beyond addressing Montana’s constitutional provision, which prohibits the use of public funding for denominational institutions and purposes, voucher opponents and proponents agreed that the decision effectively rendered such amendments toothless.
The provisions, known as Blaine amendments, exist in 37 states and generally restrict government aid to religious institutions. The amendments were named for James G. Blaine, who in the 1800s sought legal mechanisms to deny religious schools public funding, a popular stance at a time rife with discrimination against Catholics.
“Montana and other states should be very clear about this historic decision: Your bigoted Blaine amendments and other restrictions like them are unconstitutional, dead and buried,” Education Secretary Betsy DeVos said. “I’m calling on all states to now seize the extraordinary opportunity to expand all education options at all schools to every single student in America.”
Private school voucher proponents like Ms. DeVos, seeing clear legal momentum, say they will use other court cases and state legislative initiatives to expand voucherlike programs — and ultimately challenge provisions in at least 14 states that strictly prohibit the participation of religious schools in programs that provide tuition assistance.
Scott Bullock, the president and general counsel of the libertarian Institute for Justice, which argued and won the Espinoza case, said the group would work to strengthen programs across the country from challenges.
“We’re going to build upon this decision as the lawyers for the school choice movement to make sure that further legal impediments do not stand in the way” of other programs, he said.
Several states, like Montana, have argued that their Blaine amendments have evolved from their bigoted roots to serve as a bulwark for the separation of church and state and the preservation of public education.
But the high court rejected the way they had been applied to stop taxpayer support for religious education.
In the majority opinion, Chief Justice John G. Roberts Jr. wrote that Montana’s argument that it was safeguarding against the diversion of funds from public education collapsed when it approved taxpayer support for nonreligious private schools.
The most immediate effect of the decision may be found in Mr. Blaine’s home state, Maine, where the Institute for Justice is challenging a law that excludes religious schools from a tuition program.
Specifically, the Maine law excludes religious schools from a “town tuitioning” program, which was created in 1873 and is thought to be the second oldest school voucher program in the nation. The program provides money for private school tuition to families who do not have access to a public school, but it has excluded religious schools since the 1980s.
When Dave Carson and his wife decided to enroll their then-toddler in a private Christian school in rural Maine, they said they accepted that they would pay. To them, $5,000 a year was a small price to anchor her education in their Baptist beliefs.
“You can’t protect your kids from everything, but if you can help, you do it,” Mr. Carson said. “You knew they were kind of discriminating against you, but you figured you can’t fight the government.”
The Supreme Court decision this week appears to indicate that 12 years and $60,000 later, the Carsons had the Constitution on their side.
Alan Gillis said he and his wife “bit the bullet” to pay about $5,000 per year to send his daughter to Bangor Christian School because she was ostracized in her public school for her religious beliefs. The family is also a plaintiff in the Maine lawsuit.
“This wasn’t about the money; this was about right and wrong,” said Mr. Gillis, whose daughter graduated this year. “This lawsuit is about other families and other children, and allowing those folks to choose the best academic environment for their children.”
The Supreme Court has long upheld the right of parents to choose religious schools and states’ rights to financially support them, but in the majority opinion, Chief Justice Roberts said that the application of the Montana provision was unconstitutional because “it penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”
Legal experts see broad ramifications, especially for the 37 states with “no aid” Blaine amendments in their constitutions.
Joshua Dunn, a professor of political science and the director of the Center for the Study of Government and the Individual at the University of Colorado at Colorado Springs, said that while the opinion appeared restrained, it “struck down Blaine amendments without officially doing so.”
“There might be something left, but not much, and what’s remaining is not going to have a whole lot of force,” he said.
He noted that even in her dissent, Justice Ruth Bader Ginsburg said, “By urging that it is impossible to apply the no-aid provision in harmony with the free exercise clause, the court seems to treat the no-aid provision itself as unconstitutional.”
Mr. Dunn saw that as a legal sea change, “I still believe the biggest obstacle for choice programs is political rather than legal,” he said.
The Trump administration, which has adopted school choice as its trademark education policy, reveled in the decision after stinging losses in the Supreme Court last week. The administration has proposed voucher programs in its budgets and backed legislation that would establish a scholarship program that would grant federal tax credits for donors seeking to help families fund private schools — proposals that have gone nowhere.
Public school advocates are bracing for those proposals to pick up steam, particularly as the coronavirus pandemic has left parents desperate for options outside of the traditional public school system.
Ms. DeVos has used the pandemic to push some of her preferred policies, including allocating emergency relief funding to encourage states to create “microgrants” for parents to use for educational programs, including private and virtual schools.
The National Coalition for Public Education — which includes 50 advocacy groups, including the AASA, The School Superintendents Association, and Americans United for Separation of Church & State — said the Supreme Court “has opened the door for voucher proponents in states to aggressively pursue the diversion of taxpayer dollars to private schools — schools that can pick and choose who they educate and are not accountable to taxpayers.”
Mr. Carson said he was hopeful that he and other families would win their case in Maine, but because his daughter will be a senior next year, he saw the Supreme Court victory as one for those coming behind her. He said he personally knew families who had to pull their children out of his daughter’s school because they could not afford tuition.
“They have tuition assistance, but a lot of people won’t take it because they don’t want to have a handout,” he said. “I was more happy for the kids coming through, especially now. It’s kind of perfect timing.”
