Religious fairness in private school funding


A state does not have to fund private schools. But if it does direct public funds to private schools, it may not discriminate against private religious schools. That’s the essence of last week’s common-sense 5-4 Supreme Court decision.

Chief Justice John Roberts voted with the court’s conservatives in deciding Espinoza v. Montana Department of Revenue, and wrote the court opinion. The decision is a victory for several religious advocacy organizations, and opens the door to the possibility of more public funding for Jewish day schools and other private education programs.

“A state need not subsidize private education,” Roberts wrote for the majority. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The decision effectively nullifies clauses in 37 state constitutions that prohibit taxpayer aid for parochial schools. These so-called Blaine Amendments stem from 19th-century anti-Catholic discrimination by the country’s Protestant majority. And Roberts pulled no punches in his condemnation of the Blaine Amendment and its history: “The Blaine Amendment was ‘born of bigotry’ and ‘arose at a time of pervasive hostility to the Catholic Church and to Catholics in general’; many of its state counterparts have a similarly ‘shameful pedigree.’”

The Espinoza case involves a Montana program that granted tax credits to residents who donate money to a state scholarship program to pay for students to attend private schools, both secular and sectarian. The Montana Supreme Court struck down the tax credit program as a violation of the state’s constitution, and the U.S. Supreme Court overturned that ruling.

The decision was cheered by the Trump administration, and hailed by supporters like the Orthodox Union, which said the ruling “solidifies the legal bases [for] the creation or expansion of many state aid programs to support parental choice in education.” Twenty-nine states and the District of Columbia provide tax credits or vouchers to families that send their children to private schools. Under Espinoza, if they don’t already do so, those programs must be expanded to include private religious schools.

Justice Ruth Bader Ginsburg dissented, noting that the Montana court remedied the state constitutional violation when it struck down the scholarship program in its entirety, treating secular and religious private schools equally. Justice Sonia Sotomayor wrote separately that the ruling “weakens this country’s longstanding commitment to a separation of church and state beneficial to both.”

We applaud the Espinoza decision, and welcome the demise of the Blaine Amendment. States are now free to decide whether and how to support private education without legally mandated religious discrimination.

Significantly, the Espinoza decision offers additional proof that Chief Justice Roberts is the Supreme Court’s new deciding vote. In recent rulings he has shown a new level of sensitivity in his votes, and appears to be a man focused on the law, with an eye on the Roberts Court’s legacy.

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