To protect religious freedom, the Supreme Court must rule in favor of school choice

Five years ago, single mom Kendra Espinoza made the difficult decision to pull her children out of public school in their home of Kalispell, Montana. She tried everything to make it work, but her oldest daughter was being bullied and her youngest daughter was struggling academically. Kendra transferred them to a private Christian school and took on a second job cleaning houses to pay for the tuition. But while Kendra’s daughters thrived, Kendra spent sleepless nights worrying about how she’d make the next tuition payment. Kendra thought her prayers were answered when the Montana Legislature enacted a scholarship program for low-income families.

But then the state Department of Revenue told Kendra not to bother applying.

Why?

Because her daughters attended a religious school.

Represented by our organization, the Institute for Justice, Kendra sued and on Wednesday, the U.S. Supreme Court will hear her case. Espinoza v. Montana Department of Revenue is expected to decide whether the government may bar parents from selecting religious schools as part of otherwise generally available student-aid programs, or whether this prohibition violates the U.S. Constitution’s Free Exercise Clause. This question, which has divided the lower courts for decades, affects millions of families nationwide who want educational choice for their children.

Sending your child to a religious school for a better chance

Like the Espinozas, many low- and mid-income families want the choice to pursue alternative schooling — a choice their wealthier peers already exercise by either moving into good school districts or paying for private education out of their own pockets. Currently, 28 states and Washington, D.C., operate educational choice programs, which provide financial aid for parents to select the best school — whether religious or secular — for their children.

Allowing religious schools to participate in these programs is crucial. Most private schools in America are religious, and many parents, like Kendra, prefer them. Religious schools often tout strong academics, a close-knit community and the same values that religious families teach at home.

Unfortunately, many state constitutions, including Montana’s, contain what are known as “Blaine Amendments,” which prohibit states from using public funds to aid “sectarian” or religious schools.

These amendments have an ugly history: Starting in 1835, Protestant political elites pushed for these amendments to “defend” the country from the new waves of Catholic immigrants.

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At the time, public schools were decidedly Protestant, requiring students to read from the King James Bible, sing Protestant hymns and recite Protestant prayers. Determined to protect the status quo, Rep. James Blaine, R-Maine, led the effort in 1875 to preserve the Protestant public schools and ban public funding of “sectarian” (code for Catholic) schools.

Over time, 37 states (including California, Massachusetts, Missouri, Texas and Washington) adopted Blaine Amendments in their constitutions to do just that.

Today, the religious bigotry at the heart of the Blaine Amendments has spread to all religions. In 2015, Montana’s lawmakers enacted an educational choice program meant to help low-income families across the state. But the Montana Department of Revenue, relying on the state's Blaine Amendment, banned any parent who wished to send their child to a religious school from using the program.

Getting rid of choice programs entirely

The Montana Supreme Court took this religious discrimination one step further: Wielding the Blaine Amendment, the court struck down the entire program — for both children attending religious and nonreligious schools — because it concluded that was the only way to ensure that not a dime of scholarship money went to children attending religious schools. If left unchecked, this decision may force Montana families who live in poverty or who have children with disabilities to pull their children out of their current schools and return them to public schools that failed to meet their needs.

Montana is not the only place where Blaine Amendments have deprived families of educational opportunities. 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 Alabama, Wisconsin 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.

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Our hope and expectation is that the court will rule that barring religious options from choice programs shows hostility, not neutrality, toward religion. The Montana Legislature did not have to pass a school choice program, but once it did, it had to allow everyone to participate, regardless of their religious preference. Using Montana’s Blaine Amendment to invalidate the program, just because it included religious schools, violates the federal Constitution’s Free Exercise Clause.

The court should make clear that Blaine Amendments are repugnant to religious neutrality and, in so doing, pave the way for greater educational opportunities, not just for Kendra Espinoza and her daughters, but for hundreds of thousands of families nationwide who desperately need these options.

Erica Smith and Dick Komer are senior attorneys at the Institute for Justice, which represents Kendra Espinoza and other families in their case before the U.S. Supreme Court.

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This article originally appeared on USA TODAY: SCOTUS' only way to protect religious freedom is through school choice