State Policy Network
Supreme Court hears momentous education and religious freedom case

On January 22, 2020, the US Supreme Court will hear oral arguments in Espinoza v. Montana Department of Revenue, a case that will decide whether or not states can exclude religious schools from school choice programs.

The Institute for Justice (IJ) will represent the lead plaintiff in the case, Kendra Espinoza, a Montana mother who works two jobs to send her children to Stillwater Christian School. Espinoza sends her kids to Stillwater, thanks to a state tax credit scholarship program. Enacted in 2015, the program offers tax credits up to $150 for donations to organizations that provide K-12 scholarships. The program ran smoothly until 2017 when the Montana Department of Revenue issued a rule that said students could not use the scholarships to attend religious schools—doing so would be a violation of Montana’s Blaine Amendment.

Blaine Amendments 101

Blaine Amendments are named after Maine Representative James G. Blaine, who offered an amendment to the US Constitution in 1875 that would have banned funds going to schools “under the control of any religious sect.” Blaine’s amendment wasn’t adopted, but Congress required all new states to incorporate a version of the amendment in their constitutions. Several states added a provision that said schools must be “free from sectarian control.”

On the surface, this might seem like a sensible way to separate church and state. A closer look reveals the underlying motive behind the Blaine Amendments: bigotry against Catholics. When the Blaine Amendments were created, public schools required students to pray, sing hymns, and read the King James version of the Bible—a version in direct conflict with Catholic teaching. Back then, “sectarian” meant Catholic.

Montana’s Blaine Amendment was invoked as the reason Kendra Espinoza could no longer use the tax credit program to send her children to a religious school. IJ sued on behalf of Espinoza in 2017, and the Montana Supreme Court ruled that whole program needed to go. Espinoza appealed, and today the case has made its way to the US Supreme Court.

Photo Credit: Institute for Justice

What Espinoza means for families across the states

With Blaine Amendments in the constitutions of 37 states, this case will have implications far beyond Montana. Thousands of American families seek better educational options for their children, many of whom are trapped in school systems that don’t fit their individual needs. Education choices give these families alternatives, and oftentimes a religious school is the best option for them.

As IJ has argued, parents have a right to choose where their child goes to school—whether that’s a religious or non-religious institution. Excluding religious schools from choice programs is a violation of the First Amendment. If the court rules Blaine Amendments unconstitutional, education opportunities for families would significantly expand across the country.

“The heart of this case challenges discriminatory Blaine Amendments, which have prevented too many states from pursuing school choice policies that would empower students and families,” said Katherine Bathgate, senior policy advisor at State Policy Network. “A favorable ruling would open the door for much-needed education opportunities in more than 30 states that still have these amendments in place. State think tanks are watching this case closely and are ready to champion school choice in their states.” 

Pam Benigno, director of the Education Policy Center at the Independence Institute, added: “We hope for an outcome that will provide thousands of children with new educational options. Either way, we all need clarity on the issue.”

SPN members stand up for families and students

Along with the Institute for Justice, state think tanks across the country, including the Mackinac Center, the Independence Institute, and the Pioneer Institute, launched campaigns to raise awareness about the case and its implications for school choice and religious freedom. Through amicus briefs, research, events, videos, op-eds, and other media outreach, SPN members provided valuable education on the case and explained how Blaine Amendments limit educational opportunities in their states.

The Mackinac Center’s campaign dates all the way back to 1997, when the Center published a report that championed the Universal Tuition Tax Credit—the same one used by Espinoza—as a way to give families more educational opportunities. Mackinac Center’s director of education policy, Ben DeGrow, reflected on the effect this case could have on Michiganders: “The hope Michigan families have in this case is that the justices will make the farthest reaching decision possible to strike down bigoted Blaine Amendments. That will get these families closer to the kind of educational freedom available to their counterparts in about half the states, including all those that surround us in the Great Lakes region.

Pioneer Institute in Massachusetts also saw the impact that the case could have on the residents of its state, so it initiated a campaign to encourage positive policy change in Massachusetts. “Since our state has among the oldest and worst of the Blaine Amendments, Pioneer has long supported efforts to remove these bigoted legal barriers to educational opportunity,” said Jamie Gass, director of the Center for School Reform at Pioneer. “With the potentially landmark Espinoza case, we’ve been pleased to submit amici briefs and assist Kendra Espinoza, her daughters, and the Institute for Justice in their efforts to establish this case as the Brown v. Board of Education of religious liberty and school choice.”

The Independence Institute submitted an amicus brief to the Supreme Court based on original research into Montana’s ban on aid to “sectarian” schools. The brief showed that “sectarian” is a not a mere synonym for “religious,” as widely assumed. On the contrary, when imported into the Montana constitution “sectarian” referred only to religious groups disfavored by those in power.

Rob Natelson, the Institute’s Senior Fellow in Constitutional Jurisprudence, authored the research and most of the brief. He pointed out that under First Amendment law, state discrimination against religion in general is hard to justify. But, he added, state discrimination among religions—as in the Montana constitution—is even harder to defend.

Natelson cautioned against referring to such “anti-sectarian clauses” as Blaine Amendments: “Anti-sectarian clauses started appearing in state constitutions long before James G. Blaine proposed his amendment to the U.S. Constitution. And anti-sectarian clauses go much further than Blaine’s proposal. Contrary to common belief, Blaine was not anti-Catholic, and his amendment—while ill advised—at least would have treated all-denominations equally. But anti-sectarian provisions like those in Montana definitely were anti-Catholic. They were also anti-Jewish, anti-Muslim, and anti-evangelical. About the only group not considered ‘sectarian,’ and therefore qualifying for state aid, were mainline Protestants.” 

For years, many Network think tanks have fought to expand school choice so children can have access to a quality education that fits their unique needs. Espinoza is a significant case that has the potential to remove barriers to educational opportunity across the states. Take a look below at the Network’s op-eds, amici briefs, research papers, and media placements on this landmark case.  

Institute for Justice: Op-Eds and Commentary

The Court Case That Could Finally Take Down Antiquated Anti-Catholic Laws (The Atlantic)
The Last Gasp of James G. Blaine? (The Wall Street Journal Editorial Board)
To protect religious freedom, the Supreme Court must rule in favor of school choice (USA Today)
Supreme Court Seems Ready to Lift Limits on State Aid to Religious Schools (New York Times)
Supreme Court Religious Rights Case Has Big Implications for U.S. Schools (Reuters and hundreds of outlets across the country)
Supreme Court battle over school choice may boost religious freedom (USA Today)
Religion and school choice on the line in ‘crucial’ Supreme Court case (Good Morning America)
First Amendment on the docket at the Supreme Court (The Times Herald and several outlets across Pennsylvania)

State Think Tank Amicus Briefs

Independence Institute: Amicus curiae
Mackinac Center: Amicus curiae
Pioneer Institute: Amicus curiae

State Think Tank Research

The Universal Tuition Tax Credit: A Proposal to Advance Parental Choice in Education (Mackinac Center)
Blaine’s Shadow: Politics, Discrimination, and School Choice (Independence Institute)
Wise & Humane: Private School Nursing In Massachusetts (Pioneer Institute)
Giving Kids Credit: Using Scholarship Tax Credits to Increase Educational Opportunity in Massachusetts.” (Pioneer Institute)
“Be Not Afraid: A History of Catholic Schooling in Massachusetts” (Pioneer Institute)

State Think Tank Op-Eds, Commentary, and Education

Independence Institute: Supreme Court to Hear Religious Freedom Case on School Choice (The Epoch Times)
Independence Institute: New research finds that most state bans on aid to religious schools are unconstitutional (The Hill)
Mackinac Center: Supreme Court must keep states from robbing parents of school choice (The Hill)
Mackinac Center: Court cases could provide Detroit students with options (The Detroit News)
Mackinac Center: The Supreme Court could free thousands of school kids (The Washington Examiner)
Mackinac Center: The Supreme Court has a chance to uphold school choice and religious liberty (The Hill)
Pioneer Institute: Challenge and Opportunity for Catholic Education (The Pilot and several outlets across Massachusetts)
Pioneer Institute Film: Big Sacrifices, Big Dreams: Ending America’s Bigoted Education Laws
Independence Institute Video: Jon Caldara Interviews Rob Natelson on Why Colorado’s “Anti-Sectarian” Rule Violates the U.S. Constitution

Events

Pioneer Institute: Erica Smith, Institute for Justice Attorney, discusses Espinoza v. Montana Department of Revenue at Pioneer Institute’s 2019 Lovett C. Peters Lecture
Pioneer Institute: Kendra Espinoza speaks at Pioneer Institute event with George Will and at Pioneer’s Harvard event