A Landmark Ruling for Religious Schools: The future implications of Espinoza v. Montana Department of Revenue

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Author: Joshua Dunn
Date: Winter 2021
From: Education Next(Vol. 21, Issue 1)
Publisher: Hoover Institution Press
Document Type: Article
Length: 3,902 words
Lexile Measure: 1390L

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THE FULL REACH OF THE U.S. SUPREME COURT'S landmark decision in Espinoza v. Montana Department of Revenue has yet to be seen, but it has the potential to reshape the school-choice landscape. That 2020 ruling, which prohibited Montana from excluding students at religious schools from a tax-credit scholarship program, is already sweeping away some of the discriminatory underbrush in the school-funding thicket.

One example comes from Vermont, where a legal battle over state funding for dual enrollment courses recently played out. A program there allows Vermont high school juniors and seniors to take two college courses paid for by the state. Until recently, though, students at religious schools were excluded because of a provision in the Vermont constitution forbidding state aid to such schools.

In 2019, the Alliance Defending Freedom filed a federal suit against the state on behalf of the Catholic Diocese of Burlington and its students and parents. The trial court ruled against them. Then in June 2020, the Alliance filed an emergency motion to the Second Circuit requesting an injunction against the state.

On August 5, a Second Circuit panel granted the request, citing the Espinoza decision of June 30. "In light of the Supreme Courts recent decision in Espinoza v. Montana Department of Revenue," the panel concluded, "[a]ppellants have a strong likelihood of success on the merits of their claims."

It is likely that Espinoza will figure prominently in many other cases in the months and years to come. The extent of its influence will depend on what happens when the decision fully confronts the court's jurisprudence on the Establishment Clause of the First Amendment.

Landmark Case

Espinoza arose in 2015 when the Montana legislature created a tax-credit scholarship program allowing individuals and businesses to contribute up to $150 to qualified scholarship organizations. Big Sky Scholarships, the only such organization that formed, provided assistance to low-income students to attend private schools, both religious and secular. However, Montana's Department of Revenue ruled that students could not use the scholarships to attend religious schools because of the state constitutions Blaine Amendment, which says that "the legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies... to aid any... [institution] controlled in whole or in part by any church, sect, or denomination." Like Montana and Vermont, 36 other states have such statutory provisions, most of which were added to the states' constitutions in an outburst of anti-Catholic bigotry in the late 1800s and early 1900s. In response to the Montana revenue departments 2015 decision, three mothers whose children had used the scholarships to attend a Christian school sued. They won at trial but lost before the state supreme court, which struck down the whole tax-credit scholarship program.

The decisions of both the Montana revenue department and the state supreme court were surprising, for three reasons. Twenty-two other states had similar scholarship programs (they have proven to be politically popular) and not a single one...

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Gale Document Number: GALE|A645314684