Should American taxpayers fund religious education?

That’s the fundamental issue now before the Supreme Court — and the decision by the justices could have a profound impact on public education as we know it today.

The high court on Wednesday is scheduled to hear arguments in Espinoza v. Montana Department of Revenue, a case that has the potential to give Education Secretary Betsy DeVos and like-minded activists a long-sought victory in their decades-long fight for what they call school choice.

DeVos would be delighted to see the court rule that states can use public money for religious education; she has said parents should be able to send their children to the schools they want — and taxpayers should pay for their education.

Public education advocates oppose such use of public money, saying it violates the separation of church and state embedded in the First Amendment, and it could devastate traditional public schools that educate most of America’s schoolchildren.

Espinoza v. Montana centers on a 2015 law passed by the Montana legislature allowing families who send their children to private or religious school to receive tax credits — paid for by the public. The state’s Department of Revenue established a rule preventing the implementation of the program and some families who could not get a tax credit sued. The case reached the Montana Supreme Court, which declared it unconstitutional, and the plaintiffs pursued it to the U.S. Supreme Court.

Some states already have vouchers or similar programs that funnel public funds into religious education. But most state legislatures have prohibited or limited the use of public money for religious schools to maintain a separation of church and state long seen by many Americans as a central tenet of their democracy.

A decision by the Supreme Court to overturn state legal provisions banning taxpayer money from paying for religious education could lead to a dramatic rise in programs, and opponents fear the money used for them would drain resources from traditional public school districts that already face financial problems.

The plaintiffs wrote in their brief to the Supreme Court that a decision in their favor would “remove a major barrier to educational opportunity for children nationwide.” Opponents say they fear it would speed up privatization of what they view as the nation’s most important civic institution: America’s public education system.

Randi Weingarten, president of the American Federation of Teachers, the second-largest teachers union in the country, said in a statement, “If this decision goes in a certain way it will be a virtual earthquake in terms of religious liberty and public education in this country.”

The Supreme Court, now with two conservative judges appointed by President Trump, has made clear in past cases that it is sympathetic to the idea of some public money being used for religious institutions for certain reasons. Washington Post reporter Robert Barnes reported in this story:

Montana told the court that, as in 37 other states, it is reasonable for its constitution to prohibit direct or indirect aid to religious organizations.
“The No-Aid Clause does not prohibit any religious practice,” Montana said in its brief. “Nor does it authorize any discriminatory benefits program. It simply says that Montana will not financially aid religious schools.”
But Montana is being called before a Supreme Court increasingly skeptical of such stark lines between church and state. A majority of justices in 2017 said Missouri could not ban a church school from requesting a grant from a state program that rehabilitated playgrounds. They have since been joined by Justice Brett M. Kavanaugh, who has signaled other such restrictions deserve the court’s attention.

The state provisions referred to by Montana in the quote above are known as “baby Blaine Amendments.” They were named after the original Blaine Amendment, a federal constitutional amendment proposed in 1875 by House Speaker James G. Blaine to prohibit public funding of religious schools. It did not pass Congress but was adopted by numerous state legislatures. At the time, it appealed to anti-Catholic sentiment among the dominant Protestant majority, but there is no evidence Blaine was prejudiced against the Christian denomination.

DeVos, a billionaire, and her allies have spent decades and a mountain of money to push states to eliminate the baby Blaines and allow public funding for religious education.

Last year, DeVos and Trump unsuccessfully sought $5 billion in their 2020 budget proposal for a federal tax-credit plan that would fund scholarships to private and religious schools. DeVos called it “the conservative answer to what ails American education."

Tax credits are one of several kinds of school choice programs that use public money to send children to private and religious schools — even though many of those schools can legally discriminate and operate without public oversight.

Under tax-credit scholarship programs, donors are allowed to take tax deductions for contributions they make to a state-sanctioned entity that distributes the cash to qualified students who use it for private and religious schools. The tax-credit program proposed by DeVos and Trump would provide tax credits on a dollar-for-dollar basis: Every $1 dollar in scholarship donations would earn a $1 tax credit. The cost: $5 billion, not zero dollars, as DeVos has contended.

According to the nonprofit EdChoice, there are more than 20 tax-credit scholarship programs in 18 states, including Alabama, Arizona, Florida, Georgia, Illinois, Indiana, Iowa, Kansas, Louisiana, Montana, New Hampshire, Nevada, Oklahoma, Pennsylvania, Rhode Island, South Carolina, South Dakota and Virginia.

(EdChoice is an Indiana nonprofit with a mission to turn the public education system into a universal voucher system. Its philosophy was explained in this 1995 op-ed written for The Washington Post by Milton Friedman, who funded the predecessor organization that became EdChoice. The headline: “Public schools: Make them private.”)

Other programs that use public money for private and religious education include vouchers. They give families part of the public funds that would be used for a child’s education in a public school and let them use it as a voucher for tuition at private and religious schools. EdChoice says there are some 25 voucher programs in 15 states; the nation’s capital also has a program, the only one funded by the federal government.

Educational savings accounts are personal accounts created by states for parents to use for educational costs, including private school tuition and fees, private tutoring, online learning programs and other uses. The money comes from state education funds. EdChoice says five states offer such funds, which often are given to families by debit card.

DeVos and allies such as Florida Gov. Ron DeSantis (R) have been articulating their own definition of “public education."

Traditionally, the definition of public education has meant schools open to all and funded, operated and governed by the public through local governments. But at a news conference last year to defend an expansion of school choice options available in the state, DeSantis said:

“An important point to make is, you know, we talk about, ‘This is public school, this is charters.' Look, if it’s public dollars, it’s public education … In Florida, public education is going to have a meaning that is directed by the parents, where the parents are the drivers because they know what’s best for their kids."

DeVos tweeted her approval, saying, “Completely agree.”