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Landmark case disallows states to discriminate against religious parents or schools

On June 30, 2020, the U.S. Supreme Court decided one of the most important education reform cases in the past half-century. This landmark case, Espinoza v. Montana Department of Revenue, held that the U.S. Constitution does not allow states to discriminate against religious parents or schools if policymakers choose to enact a private educational choice program to empower parents to choose the educational environment best suited to their own children. COURTESY PHOTO - Jay Jackson

In Espinoza, the U.S. Supreme Court held that the federal Constitution forbids states from excluding schools, based on their religious status, as options for families participating in educational choice programs.

The Court had already ruled in 2002, in Zelman v. Simmons-Harris, that allowing such options is permissible under the federal Constitution. Zelman followed a number of prior decisions that the Establishment Clause permits neutral government programs where individuals direct public aid to religious institutions. To be constitutional under the First Amendment, educational choice programs: must be neutral regarding religion (neither favoring nor discriminating against religious options); and parents must be free to decide whether to participate in the program and select among the education providers.

Despite Zelman, clauses of state constitutions commonly known as "Blaine Amendments" have impeded or invalidated educational choice programs. Blaine Amendments typically prohibit appropriations of public funds "in aid of " or "for the benefit of " religious institutions.

In 2015, the Montana Legislature passed a program that provided a tax break to Montanans if they contributed to charitable organizations that provide scholarships for children. The program allowed families to use those scholarships at any private school in Montana—religious or nonreligious. The Montana Department of Revenue, however, banned scholarships for students attending religious schools, based on the Blaine Amendment in Montana's Constitution.

Espinoza v. Montana Department of Revenue ruled that Montana's Blaine Amendment denying parents the choice of attending religious schools is discriminatory and violates the free exercise clause of the U.S. Constitution. a state cannot exclude religious options from an educational choice program. Educational choice programs require the state to remain neutral regarding religious options and allow families to choose the educational placement that works best for their families.

Such Blaine Amendments have existed in constitutions of 37 states, including Oregon. Espinoza effectively invalidates nearly every Blaine Amendment. Blaine Amendments illegally prohibited aid to religiously affiliated schools that could otherwise be given to secular schools. Over the years, state after state has avoided enacting educational reforms that give parents the ability to choose the best education possible for their children. The Supreme Court said that what is actually unconstitutional is denying parents their rights over a diverse range of education choices, religious or not.

Blaine Amendments are a shameful assault on parental rights, equality of opportunity, freedom of choice, and, of course, the First Amendment itself. The awful truth is that the Blaine Amendments were specifically designed to target and forcibly assimilate new immigrants to the U.S. who held non-Protestant religious beliefs by preventing them from attending their own schools.

Blaine Amendments were designed to punish religious minorities, but more recently, they have effectively punished low-income parents (who are disproportionately members of racial minorities) seeking better opportunity for their children. Espinoza frees policymakers to deliver on the promise of equal educational opportunity.

Espinoza gave a thorough and oft-ignored history lesson. Prior to Blaine Amendments, education was delivered and supported by a pluralistic array of organizations and individuals. In the founding era and early 19th century, governments provided financial support to private schools, including denominational ones, and the early state constitutions and statutes actively encouraged this policy. After the Civil War, education for emancipated individuals received significant federal financial support, often by supporting denominational schools in the South.

It was not until the wave of Catholic, and specifically Irish, immigration in the mid-nineteenth century that leadership sought to confine students to their version of "public schools." Catholics and other immigrants arriving in America were hesitant to send their children to attend public schools, then known as common schools, which were at the time openly and solidly Protestant institutions. Blaine Amendments were blatantly bigoted and were endorsed by the Ku Klux Klan.

The real winners of the Espinoza decision are low-income or disadvantaged parents who want the best for their children, who might benefit from what wealthier families take for granted: choice in selecting an appropriate school.

Educational choice programs help low-income parents afford a choice in their children's education, a choice that parents empowered with the economic means exercise by moving to a particular school district or sending their children to private school. Parents want a school or an educational choice that fits their children's needs and is a place where they can thrive. The true winners from Espinoza are the students (and ultimately all of society), that stand to benefit from the educational opportunities opened up by choice.

May 12, 2021, Montana Governor Greg Gianforte signed HB 279, a bill dramatically expanding the state's educational choice program and allowing hundreds more children to participate. The program offers students scholarships to attend the private school of their choice and is funded by private donations for which the donor may claim a tax credit. The new law increases the amount of the tax credit a donor may claim from $150 to $200,000. This is the latest development in a multiyear legal saga over the program, which culminated in the 2020 landmark U.S. Supreme Court ruling HYPERLINK "https://ij.org/case/montana-school-choice" Espinoza v. Montana Department of Revenue. The new law makes Montana one of 11 states to provide greater parental choice in 2021.

With the new law, Montana joins many states in providing greater parental choice to families since the Espinoza decision. So far in 2021, five other states (Arkansas, Indiana, Kentucky, Missouri, and West Virginia) have passed legislation to create new educational choice programs. In addition, seven states (Arkansas, Florida, Georgia, Indiana, Kansas, Maryland, and South Dakota) have passed legislation to expand their existing programs.

Jay R. Jackson is the president of League of Oregon Charter Schools . He can be reached at This email address is being protected from spambots. You need JavaScript enabled to view it. or 541-405-4315.


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