MONTANA LAWMAKERS in 2015 enacted a tax-credit scholarship program premised on the principle that every family — regardless of income — should be able to choose the school that best fits the needs of their child. Hoping to take advantage of the program, Kendra Espinoza, a single mother, took her two daughters out of public school, where one had struggled academically and the other had been bullied, and enrolled them in a private school. The girls thrived at the Stillwater Christian School, but paying tuition was a constant touch-and-go, with Ms. Espinoza forced to work three jobs and even hold yard sales to sell off belongings. Now, the girls’ ability to continue at the school is wrapped up in a U.S. Supreme Court case with implications for school-choice programs nationwide.
At issue in the case set to be argued Wednesday is whether states can exclude religious schools from generally available scholarship programs or whether such exclusions violate the Constitution. Montana, following the example of 27 other states and the District with some form of private school choice programs, enacted a modest tax-credit scholarship program that would help low-income families send their children to private schools, including religious schools. After the state’s revenue department set rules that excluded religious schools, parents sued, winning at the trial court but later losing when the Montana Supreme Court ruled the program violated a state prohibition against public money going to religious schools. The court invalidated the entire program.
The Institute for Justice, representing three mothers, argues the provision in the state constitution, commonly known as a Blaine amendment, violates provisions of the U.S. Constitution concerning religious freedom and equal protection. Seeming to buttress their case is a 2002 ruling from the court that upheld Cleveland’s state-enacted school-voucher program that allowed participation of religious schools and its 2017 decision that said Missouri could not exclude religious institutions from a state program to make playgrounds safer, even though the state constitution called for separation of church and state.
People with means take for granted the ability to choose their child’s school by paying tuition or moving to communities with quality schools. So we are sympathetic to parents such as Ms. Espinoza, who can’t take such choice for granted, and have been supportive of scholarship programs as long as there are measures of accountability and as long as they are targeted to low-income families. That some families choose to use the scholarships at religious schools is their right and, contrary to many of the tropes advanced by those opposed to school choice, doesn’t undermine public education or harm the state.