The case of the choice of a religious school could give rise to a landmark decision of the Supreme Court


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WASHINGTON – A potentially historic education case in Supreme Court on Wednesday drew heavy hitters on both sides of the school choice debate as they try to shape a decision that could end decades of bickering over school vouchers and religious education.

Oral arguments in the case, Espinoza v. Montana Department of Revenue, drew briefs from President Trump’s Justice Department, which hopes the High Court will bolster the administration’s education problem: public funding of private schools.

On the other hand, Democratic state governments, school boards and teachers’ unions argue that a move to a dissolved voucher program in Montana could open the floodgates for religious education. publicly funded while emptying traditional public schools.

Such a move would be a “virtual earthquake” in the public education system, said Randi Weingarten, president of the American Federation of Teachers. She added that it would cascade money away from public schools.

“It will fundamentally change 200 years of practice,” Ms. Weingarten said.

The case challenges a decision to shut down a program that offered tax breaks to donors who funded scholarships that families could use in private schools, including religious schools. Montana halted the program after its high court ruling found it violated A provision in its Constitution which prohibited the use of public funds, directly or indirectly, for religious purposes. Such provisions, known as the no-help or Blaine amendment provisions, exist in 37 states and were initially motivated by anti-Catholic biases. They are now seen as the last line of defense against the widespread acceptance of voucher programs.

The conservative-leaning high court could finally determine whether the good guys are blurring the constitutional line between church and state.

Lawyers for the Institute for Justice, the libertarian law firm that represents three Montana families, said the case could produce one of the most important education decisions in the past half century . The Supreme Court has ruled that states can include religious schools in state-funded school choice programs, but a decision that essentially requires it would be groundbreaking.

“If we win this case, it will again be the United States Supreme Court that will say that the choice of school is fully constitutional and that is a good thing,” said Erica Smith, senior counsel at the Institute. and co-counsel in the Espinoza case. “And that will give momentum to the whole country. “

Education Secretary Betsy DeVos has proposed a $ 5 billion federal tax credit scholarship program that would allow states to adopt initiatives similar to the one Montana canceled. Ms. DeVos, who sent her own children to private religious schools, tried to defeat the Blaine Amendment in her home state of Michigan.

“These changes only serve to take too many children away from a better education, including one that better fits their family’s values,” Ms. DeVos said in a statement.

Whatever the court ruling, educational policy experts and judicial observers see an effect far beyond voucher programs.

Lawsuits could force public agencies to provide funding and benefits comparable to religious schools if the agencies support other private schools. If the court decides that state bans on the use of public funds for religious purposes are rooted in bigotry, plaintiffs could emerge to say that other major issues, like the Electoral College, have the same roots. .

“While it is unconstitutional to exclude religious private schools from a public school support program, it is difficult to see where the line is and where the principle of neutrality ends,” said Kevin Welner, director of the National Center for Education Policy and professor at the University of Colorado in the Boulder School of Education. “It’s a fascinating Pandora’s box that they could open.”

About 18 states offer tax credit scholarship programs – which overwhelmingly serve low-income families or those of color – and Ms Smith said several other states have interpreted their provisions as banning the programs.

In 2017, the Supreme Court issued a restrictive ruling in a similar case, Trinity Lutheran v. Comer, where she said Missouri violated the First Amendment by excluding religious institutions from a state-funded program to make playgrounds safer. In a majority opinion footnote, Chief Justice John G. Roberts Jr. wrote that the case “involves express discrimination on the basis of religious identity with respect to the resurfacing of playgrounds. . We do not address religious uses of funding or other forms of discrimination. “

When Judge Brett M. Kavanaugh, who has championed religious groups’ access to public benefits and a Florida study voucher program, joined the court in 2018, advocates on both sides of the choice debate foresaw that any ambiguity surrounding this footnote would soon be resolved. .

The Montana Tax Credit, enacted in 2015, provided up to $ 150 to donors who supported scholarships “to provide parents and students with choice in education.” The state Revenue Department later determined that religious schools – about 70 percent of private schools in Montana – could not participate.

The Montana Supreme Court ultimately found that the entire program violated the state constitution, and the state shut it down. The Institute for Justice will argue before the Supreme Court that the closure violated the rights of its clients to the free exercise of religion and equal protection under the law.

Montana argued that the “no help” amendment in the state constitution does not prohibit any religious practice, nor does it discriminate against any particular religion. Although the provision dates from 1884, it was ratified again in 1972 by delegates who said it was intended to avoid “religious entanglement” and to preserve funds for public schools. The decision to remove tax credits for secular and religious schools served both of these goals, they said.

Where the state saw neutrality, Kendra Espinoza, the complainant named in the case, saw bias. Ms Espinoza, a single mother of three who has three jobs, wants to use the program to babysit her daughters at Stillwater Christian School in Kalispell, Mt. She believes the decision to close the program was in part an “incentive to have all students in public education.”

“If the program was there and it was canceled just so people of faith cannot access it, then that is discrimination,” Ms. Espinoza said in an interview with The New York Times last month. .

Lawyers from the Ministry of Justice argued that the application of the constitutional amendment in Montana “penalize parents who choose a religious rather than a secular school for their children”.

Amicus memories poured in. Several public education groups, such as AASA, the School Superintendents Association, wrote that it was a “voucher system” that “shifts public funds from the local public school to the detriment of local public schools. students who have no real choice but to stay. “

Civil liberties groups, such as Americans United for Separation of Church and State and the American Civil Liberties Union, argued in a brief that a ruling against Montana would force taxpayers to fund religious indoctrination and discrimination in schools. The groups mentioned curriculum and textbooks from religious schools that participated in the Montana program. One school said its biology students “would see the contradictions between what is popular science today and the truth of the word of God.” Another demanded that his students “come from a family that celebrates biblical values” and that at least one parent be “born again”.

Research groups favoring choice, such as EdChoice, argued that the intervention of the High Court was necessary to resolve a “deep divide” in the lower courts.

“Families, taxpayers and communities who find themselves on the wrong side of the judicial divide will continue to be deprived of the substantial educational, fiscal and civic benefits that religiously neutral educational choice programs offer,” the groups wrote. .

Adam Liptak contributed reporting.

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