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U.S. Supreme Court hears high-stakes school choice case

Today the U.S. Supreme Court is hearing oral arguments in a case that could greatly impact the role private schools play in the school choice debate.

Represented by the Institute for Justice, three Montana mothers—Kendra Espinoza, Jeri Anderson and Jamie Schaefer, all plaintiffs in Espinoza v. Montana Department of Revenue—are asking the High Court to uphold a state tax credit program that supports low-income students looking to attend private schools of their choice.

The state tax credit scholarships were approved by the Montana legislature in 2015. Individuals and businesses who donated to participating scholarship organizations received a dollar-for-dollar tax credit up to $150. The donated money was awarded to low-income families so their children could access private schools, which in Montana, according to the Supreme Court of the United States’ blog, are mostly religious schools.

Shortly after the tax credit program was created, the Montana Department of Revenue imposed an administrative rule that prohibited use of the scholarships at religiously-affiliated schools, indicating that “the rule was necessary to comply with the state constitution’s ban on aid for churches and religious schools.”

Espinoza, Anderson and Schaefer challenged the rule before the Montana state court, who agreed with the plaintiffs, but the ruling was then reversed by the Montana Supreme Court, who wielded the Blaine Amendment and struck down the entire program—affecting students attending both religious and nonreligious schools.

The Montana Supreme Court concluded that the tax-credit program violated the state constitution because it allowed families to use scholarships at religious schools. The state court reasoned that because “[r]eligious education is a rock on which the whole church rests,” giving a tax benefit to a religious school is no different from giving the church itself a benefit, and it rejected the plaintiffs’ suggestion that its interpretation of the state constitution would violate the federal constitution.

Now the nation’s highest court is being asked to weigh in. And the stakes are high. Blaine Amendments in numerous states have deprived students and families of educational opportunities for decades, writes Erica Smith and Dick Komer, senior attorneys at the Institute for Justice.

These amendments are a frequent tool used in lawsuits against educational choice programs. Although the vast majority of lawsuits have failed, they tied up these programs in litigation for years, depriving children in states like AlabamaWisconsin and Ohio of much needed financial aid in the process.

Worse yet, these amendments have discouraged various state legislatures — like in Idaho, Kentucky, Missouri and New Hampshire — from enacting educational choice programs at all, thereby consigning another generation of children in those states to failing public schools because the parents lack the resources to vote with their feet.

The Supreme Court has long held that under the Constitution, school choice programs can include religious options so long as parents—and not the government—choose their children’s schools. In so doing, the government remains neutral toward religion—neither favoring nor discriminating against religious options. The question the court will have to answer in Espinoza is whether the government may employ state constitutions to bar religious options in these programs.

Even in Minnesota, students who are most in need of new educational opportunities have had the door closed on them, allowing financial barriers to determine what learning environment they can access.

It is time for the U.S. Supreme Court to free thousands of students and finally take down discriminatory Blaine Amendments.

The Court is expected to make its potentially landmark decision by the end of June.






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