The Supreme Court Building in Washington, DC. Photo taken by Tim Sackton (CC-By-SA 2.0).
The Supreme Court of the United States Building
Photo credit: Tim Sackton (CC-By-SA 2.0)

The U.S. Supreme Court has taken up a pivotal case in the fight for school choice: Espinoza v. Montana Department of Revenue (2018), in which the Montana Supreme Court struck down the state’s tax credit scholarships.  

The Montana court took the unique position that tax credits were indirect payments of tuition to private schools by the state, in contrast to a 2011 Supreme Court decision in which the high court rejected opponents’ position that personal donations to the tax credit program were government property. (ACSTO v. Winn)

Tax-credit scholarships allow taxpayers to receive a dollar-for-dollar credit against state tax liability when they donate to a School Tuition Organization (STO), or another non-profit that provides private school tuition scholarships.  Currently, 18 states have tax-credit scholarship programs, including Montana.

The question before the court is whether Montana’s scholarship program “…violates the religion clauses or the equal protection clause of the U.S. Constitution in such a way as to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.”

Oral argument in the case took place on January 22, with Espinoza’s lawyer arguing that exclusion of religious schools from a state scholarship program is disallowed by the federal constitution. 

Questioning by Justices Ginsberg, Sotomayor, and Kagan fell decidedly on the issue of standing, and whether Plaintiff Espinoza had suffered any actionable harm given she was neither the taxpayer receiving the credit, the school receiving the money, nor was a scholarship for her child guaranteed.

Justices Kavanaugh and Alito took the position that the case was a direct violation of Trinity Lutheran Church v. Comer, which held that excluding churches from a program to provide grants to resurface playgrounds violated the free exercise clause of the First Amendment.  Justices Gorsuch and Thomas asked no questions during oral argument, but their votes in the Trinity case indicate they’ll likely vote in support of plaintiff in the Espinoza case.

The swing votes belong to Justices Breyer and Roberts, who both expressed concern about the broader issue of public school funding over time, and in light of Roberts’ “Footnote 3,” in the Trinity case stating, “This case involves express discrimination based on religious identity with respect to playground resurfacing.  We do not address religious uses of funding or other forms of discrimination.”

The importance of the Espinoza case can’t be ignored, particularly as public education becomes a less and less desirable option for many families.  School choice advocates frequently tout vouchers and ESA programs as a way to expand educational opportunities; however, both vouchers and ESA programs open schools up to government interference.  The tax credit scholarship, on the other hand, is currently the only school choice option in which schools are protected from government overreach. While the STOs that award scholarships are subject to state regulation, the schools benefiting from them are not.

Government interference has destroyed public education.  Saving private and religious education is imperative.

A decision from the high court is expected sometime this summer.

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