State Money to Religious Schools Hinges on Supreme Court Ruling

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The U.S. Supreme Court could shape the future of state school choice initiatives, potentially opening public funding to religious institutions in states offering school vouchers, in a decision as soon as this week.

At stake: a 2018 state supreme court decision that struck down a tax credit scholarship program, finding it violated a provision of the state constitution because the program allowed for the indirect use of public money at religious schools. Three Montana families sued in the case, Kendra Espinoza, et al. vs. Montana Department of Revenue, et al., U.S., 18 1195, and want the Supreme Court to restore the program.

Supporters say a win on vouchers would add momentum to expand school choice in other states. Advocates of public education, including teacher unionists, say scrapping the restrictions on religious schools would siphon off more money from schools already struggling with the coronavirus toll on the nation’s economy.

“We haven’t even gotten back to 2008-2009 funding levels for public schools,” said David Strom, general counsel at the American Federation of Teachers. “So it would be a big concern because of the limitation on resources available to public school students.”

Photographer: Billy H.C. Kwok/Bloomberg
A school classroom as photographed earlier this year.

The case drew the involvement of national teachers unions, including the AFT, as well as major school choice groups. Education Secretary Betsy DeVos, an advocate of the public aiding access to private schools, has made a school tax credit a top priority in the last two years. She’s won little support in Congress.

Go Big or Go Narrow?

The Montana program allowed individuals and corporations to receive tax credits for contributing as much as $150 per year to groups that funded scholarships for private schooling.

School choice groups targeted the case to push the overturn of Blaine Amendments, provisions in almost 40 state constitutions, Montana’s among them, that limit public funding to private education.

Public education advocates hope the high court will decide the plaintiffs don’t have standing because when Montana halted the program, they weren’t prevented from obtaining vouchers, Strom said.

Should the court side with the school choice advocates, the justices could limit their ruling to the Montana program. Or the court could decide more broadly and overturn state limits on public funding of religious schools should states enact school choice programs, Strom said.

“Then it’s a legislative question—are states inclined to support these programs?” he said.

Coronavirus Effect

School-choice advocates bringing the case expect the court to follow a 2017 decision, Trinity Lutheran Church of Columbia vs. Comer, U.S., 15 577, 6/26/17, that found state programs with a secular purpose, such as repairing playgrounds, couldn’t exclude religious schools, said Tim Keller, a senior attorney at the Institute for Justice, which represented the plaintiffs in the Montana case.

Of the almost 20 states that currently operate school choice tax credit programs, only two—Maine and Vermont—disallow use of tuition benefits at religious schools. Neither state’s constitution includes a Blaine Amendment.

The Institute for Justice and other school choice groups would like see more states enact school choice vouchers. A broad victory in the Espinoza case would mean new choice programs couldn’t leave out religious schools, Keller said.

More parents and state policymakers are interested in a broad array of education options beyond the brick-and-mortar school, particularly in light of the coronavirus pandemic, Keller said. A Supreme Court win would mean states “won’t be able to exclude religious education providers from participating in those programs,” he said.

To contact the reporter on this story: Andrew Kreighbaum in Washington at

To contact the editors responsible for this story: Paul Hendrie at; Robin Meszoly at

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