Supreme Court battle over school choice may boost religious freedom

WASHINGTON – Three moms from Montana will be at the Supreme Court on Wednesday where they'll get a chance to make history on religious school choice.

What they're fighting over may seem small: a discontinued state program that offered $150 tax credits to help spur $500 tuition scholarships. But the stakes are high for both sides in the national debate over public aid for religious schools.

Conservative groups flooded the high court with arguments supporting the Montana parents' cause. Having long sought legislative backing for voucher and tax credit programs, they see the case as a judicial promised land.

On the other side are teachers unions and civil rights groups worried that if the floodgates open for religious school funding, public schools will suffer. A ruling for the Montana moms, they say, would violate the Constitution's principle of separation of church and state. Thomas Jefferson and James Madison, they say, would be on their side.

What's not in dispute is the potential impact of the high court's ruling. Thirty-seven states have constitutional prohibitions against state funding of religious schools, including 17 that specifically block school choice programs. Nationwide, tax credits and vouchers help about 500,000 students attend religious schools.

Two of those are Kendra Espinoza's daughters: Naomi, 14, and Sarah, 11. Their mother is the lead plaintiff in Espinoza v. Montana Department of Revenue, and she looks forward to her latest day in court – the Supreme Court.

A victory, which could be delivered this spring by the court's five conservative justices, would help the single mother afford each daughter's nearly $8,000 tuition bill at Stillwater Christian School in Kalispell, pop. 23,000 – a city where the police chief meets with residents over coffee at a diner.

"Our values and our grounding and our character development – it comes from our faith, it comes from our religious background,” Espinoza says. The state's decision to end the program in the face of a lower court ruling, she says, "is really an anti-religious bias."

The Trump administration sides with Espinoza and the other challengers. President Donald Trump has long championed prayer in schools and expanded religious freedom.

The biggest obstacle for Espinoza and the other two plaintiffs may be the state's latest position on the issue. When the Montana Supreme Court ruled the program in violation of the state's constitution in 2018, officials shut down the entire program rather than exclude only religious schools. That, state officials say, should end the challenge.

If it doesn't, the biggest losers could be the nation's public schools and its teachers' unions, which contend that state aid to religious schools will drain dollars from schools that need it most.

"It will be a virtual earthquake," says Randi Weingarten, a former high school social studies teacher and president of the American Federation of Teachers. "This is a ruse to siphon off money from public education."

'Odious to our Constitution'

The Supreme Court under Chief Justice John Roberts has looked kindly on religion.

The court has upheld public prayer at government meetings and exempted religious objectors from laws regarding contraception and prohibiting discrimination against same-sex marriages. It has upheld a Muslim man's right to keep his beard in prison and a Muslim teen's right to wear a hijab at work.

Last year, it ruled 7-2 that a mammoth Latin cross on government land in Bladensburg, Maryland, does not have to be moved or altered in the name of church-state separation.

And in 2017, the justices ruled 7-2 that a Lutheran church in Missouri was eligible for public funds to resurface its playground, just like other applicants. Roberts called the state's exclusion of the church "odious to our Constitution."

That ruling opened the door to the current challenge, religious conservatives claim, even though Roberts added in a footnote, "We do not address religious uses of funding or other forms of discrimination."

Civil rights groups and teachers unions opposed to the use of tax dollars for religious purposes point to a different 7-2 decision from the high court in 2004. Then, the justices upheld a public scholarship program that excluded students pursuing theology degrees.

A ruling in favor of religious school choice would be a game-changer, and the court may be poised to deliver it. The newest associate justice, Brett Kavanaugh, is a devout Catholic, leaving the court with five Catholics and three Jews. Associate Justice Neil Gorsuch was raised Catholic but attends an Episcopal church.

Douglas Laycock, a leading authority on the law of religious liberty who teaches at the University of Virginia and the University of Texas law schools, says the court appears poised to defend the rights of parents such as Espinoza.

Religious conservatives "perceive the public schools as deeply hostile to their faith, excluding religious observances and religious instruction and teaching evolution, which they associate with atheism, and secular values, especially on sexual matters," Laycock says. That undermines "the faith and morals they are trying to instill at home."

'I don't have a choice'

Both sides in the Espinoza case focus on the First Amendment but for different reasons. Conservatives cite their right to "free exercise" of religion. Liberals emphasize the prohibition on government "establishment" of religion.

Erica Smith, a senior attorney at the Institute for Justice who represents Espinoza, says the Free Exercise Clause mandates that any public funding for private schools must include religious ones. To exclude them is "showing hostility towards religion," she says.

Groups opposed to religious school funding defend states' ability to restrict the use of public tax dollars for private or religious schools.

“The Supreme Court has never held that states must fund religious education," says Rachel Laser, president of Americans United for Separation of Church and State. "It should not do so now.”

Espinoza says the facts – and the justices – are on her side.

Public schools "don’t have an argument," she says. "They have plenty of money. In fact, I still pay property taxes that go directly to the schools, and I don’t have a choice in that."

This article originally appeared on USA TODAY: School choice: Religious, public school backers clash at Supreme Court