Supreme Court Backs School Choice – For Now

School choice advocates are rightly pleased about the U.S. Supreme Court’s ruling last month in Espinoza v. Montana Department of Revenue, which overturned the state’s regulatory exclusion of parochial schools from its scholarship tax credit program.  This positive outcome will enable children from lower income households to use scholarships to attend parochial schools.

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Unfortunately, as a legal matter, school choice remains tenuous. Moreover, the political struggle will continue for choice to become a reality for schoolchildren.

The Court’s ruling was the correct one, but not merely because the program’s beneficiaries are mostly poor children who will be able to attend schools of choice. The outcome was correct based on a proper reading of the U.S. Constitution’s Establishment Clause, which does not forbid what in this case was the individual free exercise of religion which had a connection to government spending or tax policy.

“[T]he Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs,” wrote Chief Justice John Roberts, who authored the majority opinion of the Court.

Not only did the Court reaffirm the constitutionality of school choice involving religious schools, it did so by striking down the application of Montana’s constitutional restriction on public funds going to religious entities, which it said “discriminates based on religious status.”  These so-called “Blaine Amendments” to state constitutions, dating from the late 1800’s, are a vestige of anti-Catholic bigotry. This Supreme Court has effectively consigned them to the ash heap of history.

This latest Court ruling follows the landmark school choice ruling from 2002, Zelman v. Simmons-Harris, which upheld the constitutionality of the Cleveland voucher program that gave parents taxpayer-funded payments for tuition at any participating private or parochial school of their choice. 

Eighteen years after the Zelman case, the Court had to revisit the school choice issue, this time dealing with the Montana Supreme Court’s allowing the Revenue Department’s regulatory exclusion of religious schools from the state’s scholarship tax credit program. Yet, the mechanism to implement school choice in Espinoza, that is, a tax credit, does not involve public funds, in contrast to the voucher program upheld in Zelman

Long-standing federal and state tax policy provides income and corporate tax deductions for charitable donations to religious entities such as churches and schools. A tax credit to a K-12 scholarship fund, religious or secular, is no different in nature; it is a tax incentive, yet it became the subject of litigation. 

The Espinoza ruling was decided by a narrow 5-to-4 majority, as was Zelman. That means it is potentially one presidential appointment away from being reversed, even though this case reaffirmed Establishment Clause rulings, including Zelman and the more recent 2017 case, Trinity Lutheran Church v. Comer. This latter precedent overturned a Missouri program which disqualified otherwise eligible recipients from a public benefit “solely because of their religious character.” The four current dissenters had no respect for these precedents, and a fifth such member who comes along someday may have a similar approach by disregarding the Espinoza precedent. 

If such a majority one day emerges on the Court, will the Court stop at reversing school choice? If they view as unconstitutional a tax incentive that through multiple steps enables a child to attend a religious school, what would stop the Court from striking down tax deductions for donations to churches, synagogues, and mosques? A few weeks ago, “defund the police” sounded outlandish, too.

As with the famous 1954 case, Brown v. Board of Education of Topeka, which the Supreme Court ruled school segregation as unconstitutional, the school choice issue should finally be settled case law. School choice should also be understood by all political stripes as a legitimate means to improve education, especially for lower-income families seeking educational access and justice. 

Like the Brown ruling, the Supreme Court in the Espinoza case has done right by children, especially minority children, and has done right by the Constitution. But, as in the aftermath of Brown, the legal and political struggle must continue in order to bring educational equity, opportunity and choice to America’s schoolchildren. As eventually occurred with Brown on the issue of racial integration, let’s hope that one day there will be bipartisan political support for school choice.

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