What the Espinoza Ruling Means for Blaine Amendments and School Choice

EdChoice is celebrating a landmark VICTORY for families and children! Discriminatory Blaine Amendments found in state constitutions can no longer be used to prohibit families participating in school choice programs from accessing religiously affiliated private schools for their children, thanks to the U.S. Supreme Court ruling in Espinoza v. Montana Dept of Revenue.

Chief Justice Roberts delivered the opinion. He wrote that our federal constitution:

“condemns discrimination against religious schools and the families whose children attend them”, and reminded us that they “are “member[s] of the community too,” and their exclusion from the scholarship program here is “odious to our Constitution” and “cannot stand.” Trinity Lutheran, 582 U. S., at ___, ___ (slip op., at 11, 15).5.”

This landmark ruling follows prior landmark rulings from the U.S. Supreme Court affirming the constitutionality of school choice and the right of parents to choose where and how their children are educated, as well as to receive state funding to help them access learning options other than public school.

This ruling means that clauses in state constitutions that prohibit direct or indirect aid to religious or sectarian schools or institutions conflict with the Free Exercise Clause of the U.S. Constitution; as the U.S. Supreme Court said, these discriminatory clauses “cannot stand.” School choice programs cannot exclude religious schools; the inclusion of religious schools is both constitutional and required.

Montana’s School Choice Effort Behind This Case

EdChoice witnessed the beginning of Montana’s effort that resulted in the victory celebrated by families across America today.

In 2008, Jeff Laszloffy of the Montana Family Foundation called EdChoice (then the Friedman Foundation for Educational Choice) and asked for help educating policymakers and education advocates in Montana about school choice. Dedicated people in Montana had been trying to get a program passed, but they felt they needed more information and education about options to be fully successful.

Jeff organized a meeting of people from diverse backgrounds, including many who were skeptical about school choice. At the conclusion of an intensive, often emotional, multi-day educational session in November 2008, this group was determined to do what’s right for Montana’s families. They advanced school choice with renewed effort, culminating in a strong showing in the 2009 legislative session that galvanized support for future efforts.

After many valiant legislative efforts, and despite then-Gov. Steve Bullock vetoing tax-credit scholarship and education savings account legislation, Montana finally passed a tax-credit scholarship program in 2015 that the Governor allowed to become law without his signature. Senate Bill 410 (2015), authored by then-Sen. Llew Jones of Conrad, Montana, created Montana’s tax credit scholarship program, which wound up at the heart of the Espinoza litigation.

Montana Department of Revenue’s Rulemaking Mistake

The Montana Department of Revenue was responsible for implementing the program. The department adopted a rule excluding religious schools, relying on language in the bill saying that the program must comply with Article X, section 6, of the Montana constitution, Montana’s no-aid clause. Although the department’s rule was contrary to language in the bill that said scholarship-granting organizations “shall allow an eligible student to enroll with any qualified education provider of the parents’ or legal guardian’s choice,” the department decided it was unconstitutional to include religious schools because, in the department’s view, that would not comply with Montana’s no-aid clause.

On Dec. 1, 2015, the department was presented the results of an official poll of state legislators, a majority of whom confirmed that the department’s rule excluding religious schools as a choice for parents was contrary to legislative intent. This strong statement by the legislature also serves as a directive to courts that, should the issue be litigated, the rule must be considered contrary to legislative intent.

Notwithstanding the legislature’s action, on Dec. 24, 2015, the department adopted the rule. They did not have the legal authority to rule on the constitutionality of enacted legislation or omit parts of legislation, but they did it anyway.

Background of the Litigation Leading to the U.S. Supreme Court

At the Trial Court

Kendra Espinoza and two other parents agreed to become plaintiffs in a lawsuit filed on their behalf by Dick Komer at the Institute for Justice opposing the rule adopted by the Montana Department of Revenue. On Dec. 16, 2015, Dick Komer filed the case before the Flathead County court in Kalispell, Montana.

On May 26, 2017, Kendra and the other parents won at their case at the trial court, which said:

“Non-refundable tax credits simply do not involve the expenditure of money that the state has in its treasury; they concern money that is not in the treasury and not subject to expenditure. Since the plain language of Article V, Section 11(5) and Article X, Section 6(1) of the Montana Constitution prohibit appropriations, not tax credits, the Department’s Rule 1 is based on an incorrect interpretation of the law. The Court concludes that the term “appropriation” used in Article V, Section 11 (5) and in Article X, Section 6(1) does not encompass tax credits.”

The trial court concluded that because the department’s rule was based on their having made a “mistake of law” regarding the definition of what is an “appropriation,” the rule was invalidated. However, the trial court was silent as to the constitutionality of the rule, or whether Montana’s no-aid provision violated the U.S. Constitution.

During the 2017 school year, Kendra and other parents were able to access scholarships from Big Sky, Montana’s first scholarship granting organization. Big Sky awarded 44 scholarships of $500 each in 2017, and 54 scholarships of $500 each the following year. Most families had incomes of $30,000 or less, and many used scholarships to send their children to Stillwa¬ter Christian, where Kendra Espinoza’s daughters attended school.

At the Montana Supreme Court

The state of Montana appealed the ruling. EdChoice filed an amicus brief in support of Kendra and other parents at the Montana Supreme Court. Sadly, on Dec. 12, 2018, the Montana Supreme Court overturned the trial court ruling and declared the entire program invalid because it included religious options for parents. In disputing the need to apply the Free Exercise clause of the U.S. Constitution, the court said:

“Although there may be a case where an indirect payment constitutes “aid” under Article X, Section 6, but where prohibiting the aid would violate the Free Exercise Clause, this is not one of those cases.”

Furthermore, the court said:

“We conclude that Montana’s Constitution more broadly prohibits “any” state aid to sectarian schools and draws a “more stringent line than that drawn” by its federal counterpart.”

The court also ruled that the department exceeded the legislature’s grant of rulemaking authority—a small victory, but not enough to restore scholarships so necessary for children in Montana.

The Montana Supreme Court could have ruled that only religious schools would be excluded from the school choice program, but instead, the Montana Supreme Court struck down the entire program. Fearing that it would be impossible to determine whether the state’s “indirect payment of $150” tax credit to an individual (who gave a $150 charitable contribution to a scholarship granting organization) was used to fund religious education, the program was struck down in its entirety.

The U.S. Supreme Court Is Asked to Intervene

The U.S. Supreme Court accepts very few cases each year. Of the 7,000 to 8,000 petitions requesting review, only 70 to 80 cases or less are normally granted review by the Court, most on appeal from federal courts; this year, only 11 cases originating from state courts were accepted. Kendra and her lawyers at the Institute for Justice faced unfavorable odds in appealing the case to the U.S. Supreme Court, but they were not willing to accept the Montana Supreme Court’s adverse decision.

On March 12, 2019, Kendra and her Institute for Justice attorneys filed a Petition for Writ of Certiorari with the US Supreme Court, asking the court to accept the case. The Institute for Justice, along with many amici, including EdChoice, argued that state and federal courts had long been conflicted about how to address Blaine Amendments found in state constitutions. Rulings were inconsistent, and as a result, lawmakers and school choice advocates and parents were continually uncertain whether a court would apply or reject a state’s Blaine Amendment in determining the constitutionality of state aid for school choice programs.

EdChoice filed an amicus brief and was joined in that brief by the Reason Foundation and the Individual Rights Foundation. In support of Kendra Espinoza and the other parents, we said:

“Ongoing state government policy debates about educational choice are unnecessarily constrained by the constitutional uncertainty about what policies are permissible under the federal constitution. The narrow grounds for the holding in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017), did not directly address the student-aid question and, therefore, did not lift the cloud of uncertainty over the otherwise-robust policy debates. Elected and appointed officials must now continue to thread a moving needle as different courts interpret and apply this Court’s prevailing First Amendment case law differently.”

The U.S. Supreme Court is the most likely to accept a case when there is a conflict between the lower courts on a legal matter of significance.

On June 28, 2019, the Court agreed to hear the case. A full listing of those who supported, and opposed, the right of Kendra Espinoza and families across the country to have a choice of both religious and secular schools in school choice programs can be found here.

EdChoice again filed an amicus brief in support of Kendra, and was joined in that brief by the Reason Foundation and the Individual Rights Foundation.

The Landmark U.S. Supreme Court Decision

Oral arguments in this case were held at the U.S. Supreme Court on Jan. 22, 2020. Dick Komer argued the case for Kendra and the families in Montana. During oral argument, Justice Sotomayor asked:

“Are you saying that … Montana’s constitutional provision is unconstitutional.”

Dick Komer replied:

“Montana’s constitutional provision violates the free-exercise clause on its face.”

In their decision handed down on June 30, 2020, a 5-4 majority of U.S. Supreme Court Justices agreed with Dick Komer. The Court at the outset of its decision said that the question to be answered by them was whether the Free Exercise Clause of the U.S. Constitution barred the Montana Supreme Court from applying Montana’s no-aid provision to prohibit religious schools from participating in the scholarship program.

This is Montana’s no-aid clause:

“Aid prohibited to sectarian schools. . . . The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, §6(1).

As a result of the Espinoza decision, it is now clear that the federal constitution forbids states from excluding religious schools in school choice programs, regardless of any no-aid clauses or Blaine Amendments found in their state constitutions. The Court was clear:

“A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

In Justice Alito’s concurring opinion, he thoroughly explained the discriminatory basis of no-aid clauses like Montana’s. In its defense, Montana argued that their no-aid clause is their way of supporting public schools. However, Justice Alito presented the history of public schools relevant to what was happening in the country leading up to and during the time Montana’s constitution was adopted.

Horace Mann was the leader of the common schools’ movement, which aimed to create public schools that were Protestant. He succeeded. Children read from the King James Bible in public schools well into the last century. When Catholic and Orthodox Jewish children and their families objected, this gave rise to the establishment of separate schools for these children. When they requested public aid, the Blaine Amendment movement began, with support from the KKK. This is not a good part of our national history. Discrimination against non-Protestants and immigrants was rampant, and that discrimination seeped into our public schools. Catholic students were beaten for refusing to read from the King James Bible, as Justice Alito explained.

States rejected the proposal advanced by James Blaine to alter the U.S. Constitution to include a no-aid provision, so efforts were advanced to insert the provision into state constitutions. Montana, like many other western states, was compelled to include a no-aid clause as part of its bargain with the government to become a state. The document proclaiming Montana a state was signed by President Benjamin Harrison and James Blaine, who at that time was Secretary of State.

Montana also argued that because the no-aid provision was re-adopted during Montana’s 1972 Constitutional Convention, the old discrimination of the past could not be attributed to the language of their no-aid provision. However, Justice Alito explained that the 1972 convention re-adopted the very same discriminatory language, and the delegates knew they were doing so in 1972. To make his point, he shared a statement of one of the Catholic delegates to that convention. That delegate recalled being released from school in the fourth grade to help erase the “KKK” that had been written on the front doors of the Catholic church in Billings.

In commenting on the re-adoption of Montana’s no-aid provision, Justice Alito said:

“Whether or not the State did so for any reason that could be called legitimate, the convention delegates recog­nized that the provision would “continue to mean and do whatever it does now,” Convention Tr. 2014 (statement of Delegate Loendorf), and the discrimination in this case shows that the provision continues to have its originally in­tended effect.”

The no-aid provision in Montana’s constitution now has no force or effect and cannot be used as tool to deny parents the right to access the school of their choice, religious or secular, in school choice programs. As the Court said:

“Given the conflict between the Free Exercise Clause and the application of the no-aid provision here, the Montana Supreme Court should have “disregard[ed]” the no-aid provision and decided this case “conformably to the [C]onstitution” of the United States. Marbury v. Madison, 1 Cranch 137, 178 (1803).

The majority opinion also referenced a case that is fundamental to parental liberty. In Pierce v. Society of Sisters, 268 U. S. 510 (1925), the US Supreme Court said:

“The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the State to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the State; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”

In the Espinoza ruling, the U.S. Supreme Court referenced Pierce and concluded that, for those parents who choose to send their children to a nonpublic school, Montana’s no-aid provision, “penalizes that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.”

With Grateful Praise for a Wise Man

As a result of the Espinoza ruling, with a few notable exceptions, most states are free to adopt school choice programs that include religious schools as an option for parents to choose for their children; Michigan and Massachusetts have overly restrictive constitutional provisions not limited to religious concerns. Legislators who were once burdened with the fear of hostile and costly litigation with an uncertain result if they adopted school choice programs may now proceed to help their parent constituents by providing educational options for their children.

After the U.S. Supreme Court ruled that vouchers are constitutional in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Dick Komer, who originally filed the Espinoza litigation, testified before a Congressional subcommittee about jurisprudence regarding Blaine amendments and other no-aid clauses in state constitutions. Dick said:

“These overbroad interpretations of State constitutions will ultimately result, in our view, in a second Supreme Court decision which will have to address the extent to which State constitutions can restrict religious liberty more so than the Federal Constitution. We fully anticipate that that process will take a very long time.”

The year was 2002 when Dick made that prediction. He was right. Eighteen years later, Blaine Amendments have been declared unconstitutional, in conflict with the Free Exercise Clause of the U.S. Constitution. It is fitting that Dick Komer has the honor of being the lawyer who brought the case that settled such an important question of religious liberty. The nation’s parents and children owe you a debt of gratitude, Dick!

After devoting most of his adult life to the pursuit of liberty for parents and children, Dick retired. He left a beautiful legacy, and he will be missed. During litigation, Dick was assisted by a team of his fine colleagues at the Institute for Justice, including Erica Smith, Tim Keller, Michael Bindas, and their local counsel in Montana, Bill Mercer. We extend our deepest gratitude to these friends of EdChoice who are brilliant and reliable partners in developing and defending school choice across the nation.

EdChoice is also grateful to Kris Hansen, who served as our local counsel in Montana and who also was a founder of Big Sky, Montana’s scholarship granting organization that provided scholarships to Kendra Espinoza’s children and many others. We also thank Manny Klausner, counsel for the Reason Foundation and the Individual Rights Foundation, for his partnership in our briefs before the U.S. Supreme Court. Manny has been a true friend of liberty, and a friend of EdChoice, for too many years to count.

EdChoice thanks Russell Menyhart of Taft, Stettinius and Hollingsworth in Indianapolis and former Seventh Circuit Court of Appeals Justice John Tinder for their assistance in helping us prepare two fine briefs for the U.S. Supreme Court.

Last, but not least, Jeff Laszloffy of the Montana Family Foundation deserves tremendous praise for his steadfast belief in his state and the fine people in Montana, who fought with dedication over many years to bring educational freedom to families in their state. As a direct result of their efforts, the rest of the country has been given the gift of liberty. Heartfelt thanks to you, Jeff, and your wonderful friends in Montana!


Petition for Writ of Certiorari

Writs of Certiorari

“Parties who are not satisfied with the decision of a lower court must petition the U.S. Supreme Court to hear their case. The primary means to petition the court for review is to ask it to grant a writ of certiorari. This is a request that the Supreme Court order a lower court to send up the record of the case for review. The Court usually is not under any obligation to hear these cases, and it usually only does so if the case could have national significance, might harmonize conflicting decisions in the federal Circuit courts, and/or could have precedential value.”