Does the U.S. Constitution support the right of parents to choose where their children are educated? Yes!
If you want a quick education on school choice constitutionality, this page is for you. Director of the EdChoice Legal Defense & Education Center Leslie Hiner has hand-selected these landmark cases that inform the constitutionality of private educational choice programs in America. She explains more about the litigation, outcomes, the case’s effects nationally and why it all matters. Click the + and – symbols to expand and collapse the case information.
Did the Compulsory Education Act violate the liberty of parents to direct the education of their children?
The U.S. Supreme Court voted 9-0 to overturn Oregon’s Compulsory Education Act. The Court held that “The fundamental 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.”
Litigation: Challenging the Compulsory Education Act that was adopted by Oregon’s citizen initiative process at the general election of November 7, 1922. The Act mandated every parent to send their children ages 8 through 16 to a public school (with few exceptions); failure to comply was a misdemeanor. The Act was adopted by a vote of 115,506 to 103,685 (53% in favor, 47% opposed).
Outcomes: After the Pierce v. Society of Sisters ruling, parents could be compelled to educate their children at home or in a school, but they could not be compelled to send their children to public schools. Prior to this ruling, in the 19th century and early 20th century, there was a national common school and compulsory education movement. In 1852, Massachusetts was the first state to adopt a compulsory education law. This first law was adopted, in part, to protect children from child labor as the nation’s second phase of industrial revolution was emerging. However, as a strong surge of Catholic immigrants educated their children in parochial schools, nativist fervor arose to confront those schools. In the 1920s, this nativism was fueled by the Ku Klux Klan, which actively opposed Catholics and Jews, including their schools. Founded in 1865, by the 1920s, the KKK had more than 4 million members nationwide and in many places, wielded powerful political influence. Oregon boasted the largest KKK chapter west of the Mississippi, where the Klan is credited with the election of Walter Pierce as governor in 1923. There was an interest by the Klan, nativists and others in the common school and compulsory education movements to establish a uniform system of public education, compulsory for all children, for the purpose of instilling a government-led standard American belief system, imbued with Protestant teachings and values. Immigrants with different values and religious beliefs presented a challenge to public schools that considered the teaching of Protestant beliefs to be non-sectarian.
Why it Matters: This was perhaps the first, and most definitive, challenge to so-called uniformity of education. This case also brings attention to the foundational principles supporting uniformity in education – a desire by some to standardize children in a manner preferred by the government leaders and culture of the day. Prioritizing a system of education over the educational needs of children creates dissension and is a grave disservice to children who ask little more than a chance to learn.
Effects: Opponents of school choice routinely include uniformity arguments in litigation challenging the constitutionality of school choice programs. These arguments are routinely dismissed by courts, with the notable exception of the Florida Supreme Court ruling in Bush v. Holmes, a ruling widely criticized. Although it eliminated Florida’s first voucher, it has had no effect on Florida’s current voucher, education savings accounts, and tax credit scholarship programs.
Does Texas’ public education finance system violate the Fourteenth Amendment’s Equal Protection Clause by failing to distribute funding equally among its school districts?
NO. The Court held that there is no constitutional right to education found in the federal constitution. “It is not the province of this Court to create substantive constitutional rights in the name of guaranteeing equal protection of the laws.” Furthermore, the Court held that the Equal Protection Clause of the 14th Amendment does not require absolute equality. Whereas it was argued that children living in districts with lower property wealth received a “poorer quality education,” the Court said the question whether money determines the quality of education was an “unsettled and disputed question.” The Court held that the Equal Protection Clause does not require “absolute equality or precisely equal advantages.” Also, since many other states had adopted similar funding methods, mixing state and local funds to pay for education was not irrational. The state’s guarantee to provide an adequate education, fulfilled by its minimum base funding, was enough to pass constitutional scrutiny.
Litigation: Challenging a Texas law relying on local property taxes, in addition to minimum education state funding, to fund K–12 education.
Outcomes: This system of funding education through state funding plus local property tax funding continues to this day. The question whether money determines the quality of education remains disputed, except in Florida, where its high court affirmed an exhaustive lower court examination of funding and outcomes (four-week bench trial, dozens of witnesses, over 5,000 exhibits) and concluded that money is not a predictor of the quality of education (“Petitioners failed to establish any causal relationship between any alleged low student performance and a lack of resources.”) The Court also found that Florida’s school choice programs had “no negative effect on the uniformity or efficiency of the State system of public schools”). Citizens for Strong Schools, Inc. v Fla. State Bd. Of Educ., 262 So.3d 127 (Fla. 2019)
Why it Matters: States routinely spend as much as half or more of the state’s total budget for spending taxpayer dollars on K–12 education. Devising an equitable education funding formula that is transparent, easy to understand, and that offers the greatest opportunity for children to access educational options fitting the needs of students is a daunting task. States have a state constitutional obligation to fund public schools, and this has long placed their funding priority on building a state system of government-established schools rather than prioritizing the purpose of education funding – to provide opportunity for children to learn. By prioritizing the system and those who run the system ahead of its purpose to serve children, K–12 education is providing far less opportunity than students need and deserve.
Effects: Litigation over education funding continues to this day, sometimes resulting in court rulings that state budgets cannot support. The U.S. Supreme Court in this case offered words of wisdom that state courts should consider: “The judiciary is well advised to refrain from imposing on the States inflexible constitutional restraints that could circumscribe or handicap the continued research and experimentation so vital to finding even partial solutions to educational problems and to keeping abreast of ever-changing conditions.”
Does a Minnesota statute that provides deductions of up to $500 and $700 per child for tuition, textbook, and transportation payments made by parents of children attending elementary and secondary schools violate the Establishment Clause?
NO. The U.S. Supreme Court determined that the tax deduction had a secular purpose, did not advance, or inhibit religion, and did not create excessive entanglement of the state with religion.
Litigation: Challenging Minnesota’s tax deduction for parent expenditures for their children’s education, alleging this constitutes aid to parochial schools.
Outcomes: On June 29, 1983, the U.S. Supreme Court ruled in favor of Minnesota’s tax deduction for education program, a landmark decision. “Where, as here, aid to parochial schools is available only because of decisions of individual parents, no “imprimatur of state approval,” can be deemed to have been conferred on any particular religion, or on religion generally.”
Why it Matters: This case was one of the first landmark rulings from the U.S. Supreme Court supporting religious liberty in school choice programs. This continues to be cited by state and federal courts as good law.
Effects: Today, over 187,500 families use this tax deduction to help them pay for educational expenses. In 1997, Minnesota enacted a tax credit for education expenses that benefits nearly 33,000 families and students.
Does a program designed to rescue economically disadvantaged children from a failing public school system by providing scholarships that they may use in private, religious, or suburban public schools that choose to participate in the program – and which operates in the context of a broad array of public school choices – violate the First Amendment because in the early stages of the program most of the schools that have agreed to take on scholarship students are religiously affiliated?
NO. Ohio’s voucher program is part of the state’s general obligation to provide educational opportunities to children. The purpose of the voucher is to fund a child’s education and the primary recipient of educational aid is the child. No funding reaches any private school unless and until a parent chooses the school as the best provider of education for the child. If the parent chooses a religious school, any appearance of religious endorsement is attributable to the parent. The state does not choose the school and therefore no claim can be made that the state participated in the parent’s independent decision. The parent may choose secular and religious options and there is no advantage to choosing one or the other except in terms of which school will provide the best fit for the child’s learning opportunity.
Litigation: The Ohio Supreme Court had previously struck down the Cleveland voucher program, Simmons-Harris v. Goff, 711 N.E.2d 203 (Ohio 1999), ruling it was unconstitutional because the legislation adopting the voucher program violated the single subject rule. However, the court also held that the voucher program did not violate the state constitution’s compelled support or education clauses and did not violate the Federal constitution’s Establishment Clause. Opposed to educational choice program: ACLU of Ohio Foundation; American Jewish Committee; Anti-Defamation League; California Alliance for Public Schools; Council on Religious Freedom; NAACP Legal Defense and Educational Fund; National Committee for Public Education and Religious Liberty; National School Boards Association; Ohio Association for Public Education and Religious Liberty; Ohio Education Association; Ohio School Boards Association; People for the American Way In support: American Center for Law and Justice; American Civil Rights Union; American Education Reform Council; Arizona Institute for Justice; Association of Christian Schools International; Becket Fund for Religious Liberty; Black Alliance for Educational Options; Catholic League for Religious and Civil rights; CATO Institute; Center for Individual Freedom; Christian Legal Society; Center for Education Reform; Center for Individual Freedom; Children First America; Claremont Institute Center for Constitutional Jurisprudence; Cleveland City Councilwoman Fannie Lewis; Coalition for Local Sovereignty; Gary E. Johnson, Gov. of New Mexico; Goldwater Institute; Hugh Calkins; Ira J. Paul; Jesse H. Choper, et al.; John Coons and Stephen Sugarman; Milton and Rose D. Friedman Foundation; National Association of Independent Schools; National Jewish Commission on Law and Public Affairs; Pacific Legal Foundation; REACH Alliance; Mayors Rudolph Giuliani and John Norquist; Rutherford Institute; Solidarity Center for Law and Justice; State of Florida, and Alabama, Delaware, Nebraska, Pennsylvania, South Carolina, Virginia; State of Wisconsin; United States; United States Conference of Catholic Bishops; Vermonters for Better Education;
Outcomes: On June 27, 2002, the U.S. Supreme Court ruled that the Cleveland school voucher program does not violate the First Amendment of the U.S. Constitution; that vouchers are constitutional when parents have independent, private choice of schools without favoring or disfavoring religion. By design, the voucher program is “school neutral.”
Why it Matters: This case firmly established the constitutionality of the foundation of voucher programs – that funding flows from the state to a parent on behalf of the student. At that point when the parent controls the expenditure of that funding, the state has no role in determining whether the parent will choose to use funding at a religious or secular school. The funding then belongs to the parent and therefore choice of school rests squarely in the hands of parents. The state’s “role ends with the disbursement of benefits.” Zelman, at p 640.
Effects: The Zelman case has been good law since 2002. The case has been upheld and numerous state courts have relied on this case as they found vouchers to be constitutional. At the time this case was decided, 4,253 Cleveland students received vouchers; today, over 7,100 students are using vouchers to attend the school of their choice.Amicus Brief
1. Do Respondents lack taxpayer standing because they do not allege, nor can they, that the Arizona Tuition Tax Credit involves the expenditure or appropriation of state funds? 2. Is the Respondents’ alleged injury-which is solely based on the theory that Arizona’s tax credit reduces the state’s revenue-too speculative to confer taxpayer standing, especially when considering that the credit reduces the state’s financial burden for providing public education and is likely the catalyst for new sources of state income? 3. Given that the Arizona Supreme Court has authoritatively determined, under state law, that the money donated to tuition granting organizations under Arizona’s tax credit is private, not state, money, can the Respondents establish taxpayer standing to challenge the decisions of private taxpayers as to where they donate their private money?
YES. The plaintiffs, Arizona taxpayers, lacked standing to sue. They could present no injury in fact impacting them directly. They could show no misuse of tax dollars, no increase in costs to Arizona’s budget that would necessarily require a tax increase. They also could not show that their tax dollars were being collected and then used for a purpose that is unconstitutional. Their main assertion, that tax credits are government expenditures, was soundly dismissed by the Court. The Court said, “Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs. While the State, at the outset, affords the opportunity to create and contribute to an STO, the tax credit system is implemented by private action and with no state intervention.”
Litigation: Litigation: Challenging Arizona’s “Original Individual Income Tax Credit Scholarships” law, the nation’s first tax credit scholarship program, enacted in 1997. An earlier case, Kotterman v. Killian, was rejected for review by the U.S. Supreme Court. This case, challenging that the program violated the Establishment Clause of the First Amendment to the federal constitution, was accepted. Opposed to educational choice program : American Association of School Administrators, American Ethical Union, American Humanist Association, American Jewish Committee, Americans United for Separation of Church and State, Anti-Defamation League, Arizona Education Association, Arizona School Boards Association, Atheist Alliance International, Baptist Joint Committee for Religious Liberty, Center for Inquiry, Council for Secular Humanism, Freedom From Religion Foundation, Institute for Humanist Studies, Interfaith Alliance Foundation, National Education Association, National School Boards Association, Secular Coalition for America, Secular Student Alliance, Society for Humanistic Judaism, Unitarian Universalist Association. In support: Advocates for Faith and Freedom, Agudath Israel of America, American Center for Law and Justice, American Center for School Choice, Association for Biblical Higher Education, Association of Christian Schools International, Becket Fund for Religious Liberty, Black Alliance for Educational Options, Catholic Tuition Organization of the Diocese of Phoenix, Catholic Tuition Support Organization of the Diocese of Tucson, Cato Institute, Center for Arizona Policy, Center for Constitutional Jurisprudence, Christian Educators Association International, Christian Legal Society, Convocation of Anglicans in North America, Council of Christian Colleges & Universities, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Florida Assoc. Of Academic Nonpublic Schools, Florida School Choice Fund, Foundation for Excellence in Education, Friedman Foundation for Educational Choice, Goldwater Institute, Hispanic Council for Reform and Educational Options, Indiana and 12 states (AL, CO, FL, GA, LA, MI, MS, PA, SC, TX, UT, WA), Jewish Tuition Organization, Justice and Freedom Fund, Liberty Counsel and American Association of Christian Schools, Lutheran Education Foundation, National Assoc. Of Evangelicals, New Way Learning Academy, Pacific Legal Foundation, Rutherford Institute, Union of Orthodox Jewish Congregations of America, United States, U.S. Conference of Catholic Bishops, U.S. Representative Trent Franks.
Outcomes: On April 4, 2011, the U.S. Supreme Court, in a landmark decision, upheld Arizona’s personal tax-credit scholarships, ruling that taxpayers do not have standing under the U.S. Constitution’s First Amendment Establishment Clause to challenge a tax-credit scholarship program. The court rejected opponents’ position that personal income is government property, declaring: “Respondents’ contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence. Private bank accounts cannot be equated with the Arizona State Treasury.”
Why it Matters: This opinion placed tax credit scholarship programs in a favorable position to fend off litigation at the state level. It clearly explained that since funding for the scholarships comes from the voluntary action of private donors, tax credit programs are private, not state, programs. Furthermore, the court was clear that tax credits are a reduction in tax owed to the state; they are not appropriations of funds taken from a state’s treasury.
Effects: Arizona has four tax credit scholarship programs, enacted in 1997, 2006, 2009, and 2012. Over 70,000 scholarships are awarded each year. Also, since this U.S. Supreme Court ruling in 2011, only one state supreme court has ruled a tax credit scholarship program to be unconstitutional. That case, Espinoza v. Montana Dept of Revenue, was overturned by the U.S. Supreme Court in a 2020 landmark ruling.Amicus Brief Amicus Brief
Does Arizona’s Education Savings Account (ESA) violate the Aid and Religion Clauses of the Arizona Constitution, and unconstitutionally condition a benefit on the waiver of a constitutional right.
NO. The Court stated, “The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion.” Echoing the U.S. Supreme Court’s language in Zelman v. Simmons-Harris, the court said, “Any aid to religious schools would be a result of the genuine and independent private choices of the parents.”
Litigation: Litigation: Challenging Arizona’s “Empowerment Scholarship Accounts,” the nation’s first education savings account program, enacted in 2011. Opposed to educational choice program: Arizona Association of School Business Officials, Arizona Center for Law in the Public Interest, Arizona Education Association, Arizona School Boards Association, National School Boards Association. In support: Arizona Attorney General Horne and Superintendent of Public Instruction Huppenthal, Goldwater Institute, Institute for Justice, Scharf-Norton Center for Constitutional Litigation.
Outcomes: On October 1, 2013, the court of Appeals of Arizona First Division ruled that Arizona’s education savings account (ESA) law did not violate the state constitution, finding that ESAs are neutral toward religion. On March 21, 2014, the Arizona Supreme Court declined to review the case. Although a prior 2009 decision by the Arizona Supreme Court in Cain v. Horne 202 P.3d 1178 (Ariz. 2009) (en banc) found vouchers to be unconstitutional in Arizona, the appellate court distinguished ESAs, opining that they do not violate the state constitution because funding can be used for a variety of educational resources in addition to private school tuition, and because they are neutral toward religion.
Why it Matters: This important ruling set the stage for broader educational choice in Arizona, and it raised interest in ESAs across the country. Although the Arizona Supreme Court ruling in Cain v. Horn, finding vouchers to be unconstitutional, still stands, Arizona families have a new way to access state funding for private school tuition and other educational resources.
Effects: Arizona’s ESA currently serves over 7,000 students. As a result of the development of this new educational choice program in Arizona and the subsequent ruling upholding the program, ESAs have been adopted in Florida, Indiana, Kentucky, Mississippi, North Carolina, Tennessee. The largest educational choice program in the country is an ESA enacted by West Virginia in 2021.
Whether the state constitution prohibits the state legislature from providing education to Indiana school children by any means other than a uniform system of common (public) schools; whether the voucher program compels citizens to support places of worship without their consent; and whether money supporting the voucher program is drawn from the state treasury for the benefit of participating religious schools.
NO. The Court, citing the plain language of the constitution, made clear that the legislature has two education duties: 1)” to encourage moral, intellectual, scientific, and agricultural improvement”; and 2) “to provide for a general and uniform system of open common schools without tuition.” The legislature has authority to provide public schools and any other resource that aids intellectual improvement. Furthermore, the requirement of a uniform system applies to public schools and vouchers do not disrupt that system. The voucher program does not require the state to compel individuals to attend or support places of worship. The voucher program funds education, not worship. Finally, the court held that there is no direct benefit to religious schools because the program is entirely voluntary, no funds whatsoever flow to a religious school unless chosen independently by a parent, and the direct benefit of voucher funding is to the children utilizing the program. Any benefit to a school chosen by a parent is strictly an ancillary benefit that does not run afoul of the constitution.
Litigation: Challenging the “Choice Scholarship Program,” Indiana’s statewide voucher program, the largest in the nation when enacted in 2011. Opposed to educational choice program: Americans United for Separation of Church and State, Indiana Association of Public School Superintendents, Indiana Association of School Business Officials, Indiana Coalition for Public Education, Indiana School Boards Association, National Education Association. In support: Alliance Defense Fund, Becket Fund for Religious Liberty, Christian Academy of Madison, Council of Christian Colleges and Universities, Evansville Christian School, Friedman Foundation for Educational Choice (now EdChoice), Heritage Christian School, Holy Cross College, Indiana Catholic Schools of the Roman Catholic Diocese (of Indianapolis, Evansville, Fort Wayne-South Bend, Gary and Lafayette), Indiana Non-Public Education Association, Institute for Justice, Liberty Christian School, Lighthouse Christian Academy, Marian University, Pacific Legal Foundation.
Outcomes: On March 26, 2013, the Indiana Supreme Court ruled in a landmark 5-0 decision that the Choice Scholarship Program does not violate the state constitution, that vouchers, “do not directly benefit religious schools but rather directly benefit lower-income families with school-children,” that providing a voucher program does not impact the uniformity of the system of public schools, and that what is commonly known as the Blaine Amendment and related education clauses do not apply to entities providing primary and secondary education.
Why it Matters: The Indiana Supreme Court took direct aim at the history and consequences of the state constitution’s highly discriminatory Blaine Amendment and related clauses restricting religious liberty in education. In ground-breaking language, the court opined that, “the prohibition against government expenditures to benefit religious or theological institutions does not apply to institutions and programs providing primary and secondary education.
Effects: Over 19,000 students used vouchers to access the private school of their choice when the Indiana Supreme Court issued its landmark ruling. Today, over 36,000 students are accessing the school of their choice, and the Indiana legislature has continued to expand the program to reach as many students as possible.Amicus Brief
Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?
YES. If states enact school choice programs, they cannot disqualify some schools as choices for parents just because the schools are religious.
Litigation: Challenging a department of revenue rule that prohibited parents participating in the state’s tax credit scholarship program from using scholarships to pay tuition at religious schools, contrary to the statutory language passed by the state legislature. Opposed to educational choice program: Advocacy Institute; American Association of People with Disabilities; American Atheists; American Civil Liberties Union; American Civil Liberties Union of Montana; American Diabetes Association; American Federation of Teachers, an AFL-CIO affiliate; Americans United for Separation of Church and State; Anti-Defamation League; American Humanist Association; Arc of the United States; Association of Educational Service Agencies; Association of Latino Administrators and Superintendents; Association of School Business Officials International; Association of University Centers on Disabilities; Autistic Self Advocacy Network; Autism Society of America; Baptist Joint Committee for Religious Liberty; Center For Inquiry; Central Conference of American Rabbis; Center for Public Representation; Civil Rights Education and Enforcement Center; Council for Exceptional Children; Council of Administrators of Special Education; Council of Parent Attorneys and Advocates; Council of the Great City Schools; Disability Rights Education & Defense Fund; Education Law Center-PA; Evangelical Lutheran Church in America; Freedom From Religion Foundation; General Synod of the United Church of Christ; Hindu American Foundation; Interfaith Alliance Foundation; Learning Disabilities Association of America; Men of Reform Judaism; Montana Association of Rabbis; Montana Constitutional Convention Delegates; Montana Federation of Public Employees; Montana-Northern Wyoming Conference, United Church of Christ; Montana Quality Education Coalition; Montana School Boards Association; Muslim Advocates; National Association of Councils on Developmental Disabilities; National Association of Elementary School Principals; National Association of School Psychologists; National Association of Secondary School Principals; National Center for Learning Disabilities; National Center for Parent Leadership, Advocacy, and Community Empowerment; National Center for Youth Law; National Council of Jewish Women; National Disability Rights Network; National Education Association; National PTA; National Rural Education Advocacy Consortium; National Rural Education Association; National School Boards Association; People For the American Way Foundation; Public Funds Public Schools; Reconstructing Judaism; Religion Law Scholars; Reverend Dr. J. Herbert Nelson, II, as Stated Clerk of the General Assembly of the Presbyterian Church (U.S.A.); School Social Work Association of America; School Superintendents Association; States of Colorado, California, Hawaii, Massachusetts, Michigan, Minnesota, New York, Oregon and Washington; Tennessee Education Association; Texas Impact; Texas Interfaith Center for Public Policy; Union for Reform Judaism; Unitarian Universalist Association; Women of Reform Judaism; State of Maine. In support: Agudath Israel of America; Alliance for Choice in Education; American Association of Christian Schools; American Center for Law and Justice; American Federation for Children; American Legislative Exchange Council; Americans for Prosperity and yes. every kid; Arizona Christian School Tuition Organization; Association of Christian Schools International; Becket Fund for Religious Liberty; Billy Graham Evangelistic Association; Catholic Association Foundation; Catholic Charities DC; Catholic Education Partners; Cato Institute; Center for Constitutional Jurisprudence; Center for Education Reform; Chris Stewart of 8 Black Hands; Christian Legal Society; Council for Christian Colleges & Universities; Cristo Rey Network; Dr. Howard Fuller of the Institute for Transformation of Learning at Marquette University; EdChoice; Evangelical Council for Financial Accountability; Excellence Schools PA; Families Empowered; Forge Youth Mentoring; Foundation for Excellence in Education; Foundation for Moral Law; Georgia Goal Scholarship Program; Honorable Scott Walker; Immaculate Heart of Mary Catholic School; Independence Institute; Individual Rights Foundation; Institute for Faith and Family; Institutional Religious Freedom Alliance; International Conference of Evangelical Chaplain Endorsers; Invest in Education Foundation; Jack Kemp Foundation; Jerry and Kathy Armstrong; Jewish Coalition for Religious Liberty; Justice and Freedom Fund; Learn4Life; Liberty Justice Center; Mackinac Center for Public Policy; Montana Catholic School Parents; Montana Family Foundation; National Association of Evangelicals; National Legal Foundation; North Carolina School Choice; Opportunity Scholarship Fund; Pacific Justice Institute; Pacific Legal Foundation; Parents for Educational Freedom in North Carolina; Pioneer Institute; Power2Parent; Project 21; Queens Federation of Churches; Reason Foundation; Rutherford Institute; Samaritan’s Purse; Sharif El-Mekki of Philly’s 7th Ward blog; State legislative leaders Rusty Bowers, Speaker of the Arizona House of Representatives, Karen Fann, President of the Arizona Senate, Greg Hertz, Speaker of the Montana House of Representatives, Fred Thomas, Majority Leader of the Montana Senate, Senator Mike Groene, Chairman of the Nebraska Legislative Education Committee; States of Oklahoma, Georgia, Arizona, Alabama, Alaska, Arkansas, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, and West Virginia; U.S. Department of Justice; U.S. Representative Greg Gianforte representing Montana; U.S. Senators Steve Daines, Tim Scott, John Kennedy, and Marsha Blackburn, representing the States of Montana, South Carolina, Louisiana, and Tennessee; 122 current and 9 former state legislators from 34 states. The case began on December 16, 2015, when plaintiff parents represented by the Institute for Justice who filed the initial lawsuit. On May 23, 2017, Montana’s Eleventh Judicial District Court granted plaintiff’s motion for summary judgment and permanently enjoined the department’s rule prohibiting religious schools from participating in Montana’s tax-credit scholarship program. Espinoza v. Department of Revenue, MT 11th Dist. Ct., No. DV 15-1152A (May 2017). After the Montana Supreme Court ruled against parents, on March 12, 2019, the Institute for Justice, on behalf of parents, filed a petition for writ of certiorari, asking the U.S. Supreme Court to accept the case and review it in light of Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017) (holding that religious entities cannot be excluded from a generally available public benefit program simply because they are religious). Plaintiffs argued there is a Deep Split in state and federal circuit courts regarding treatment of religious entities in generally available student-aid programs and only the U.S Supreme Court can correct the constitutional confusion. On June 28, 2019, the U.S. Supreme Court agreed to take the case. The Question Presented to the Court: “Does it violate the Religion Clauses or Equal Protection Clause of the United States Constitution to invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools?” This case addressed Blaine Amendments and similar state constitutional provisions that severely limited the ability of religious entities to participate in educational student-aid programs. See: https://www.edchoice.org/engage/james-g-blaine-affecting-childrens-education-today/
Outcomes: The Supreme Court, in an opinion by Chief Justice Roberts, held on June 30, 2020, that the state’s interest in public education could not justify applying the no-aid provision to the scholarship program and that the Establishment Clause is not offended when religious organizations are incidentally benefitted from government-neutral, parent-driven school choice programs. Furthermore, school choice programs cannot exclude religious schools as choices for parents, as this would discriminate violate the Free Exercise Clause of the federal constitution’s First Amendment.
Why it Matters: Thirty-eight state constitutions include Blaine Amendments while nine others without Blaine Amendments include similarly restrictive compelled support clauses. Some state supreme courts, like Indiana’s, eliminated the impact of Blaine and compelled support through litigation (Meredith vs. Pence, 984 N.E.2d 1213 (Ind. 2013); language restricting participation of religious entities in state-aid programs does not apply to education.) However, most other states still actively supported this language, making it difficult or impossible for those states to enact many school choice programs, if any. Now, with a few exceptions, states must include religious entities in neutral student-aid programs.
Effects: School choice was expanded in Montana the year after the Espinoza ruling, and additional programs are expected in future years. Other states have exercised their freedom to enact the school choice programs; in 2021, the year after this landmark ruling, was one of the most vigorous years for adoption and expansion of school choice programs.Amicus Brief Amicus Brief
Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction?
TBD. This case is PENDING before the U.S. Supreme Court, will likely be decided in the first half of 2022.
Litigation: This case originated in light of the landmark U.S. Supreme Court ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer, 137 S. Ct. 2012 (2017). On August 21, 2018, the Institute for Justice and First Liberty Institute filed this litigation on behalf of parents in Maine who continue to seek religious liberty in their choice of education. After an adverse ruling at the district court, the case was appealed to the U.S. Court of Appeals for the First Circuit, which ruled that Maine has the right to deny funding to a parent to pay tuition for a child at a school where religion is part of the school day. The Court distinguished this case from Espinoza (see Montana) by opining that Espinoza involved a violation of the Free Exercise Clause, whereas allowing state funds to be used for education at a religious school that would use the funds in part for religious activities would be a violation by the state of the Establishment Clause. Opposed to parents seeking access to religious private schools: ACLU, ACLU of Maine, AFL-CIO, American Atheists, American Federation of State, County and Municipal Employees, Americans United for Separation of Church and State, Anti-Defamation League, Bazelon Center for Mental Health Law, Center for Law and Education, Central Conference of American Rabbis, Council of Administrators of Special Education, Equal Rights Advocates, Freedom from Religion Foundation, GLSEN, Hindu American Foundation, Interfaith Alliance Foundation, Lambda Legal Defense and Education Fund, Maine Education Association, Maine School Boards Association, Maine School Superintendents Association, Massachusetts Association of School Committees, Men of Reform Judaism, National Council of Jewish Women, National Education Association, National School Boards Association, National Women’s Law Center, New Hampshire School Boards Association, People for the American Way Foundation, Public Funds Public Schools, Reconstructionist Rabbinical Association, Rhode Island Association of School Committees, Southern Education Foundation, Union for Reform Judaism, Women of Reform Judaism, In support of parents: Agudath Israel of America, American Association of Christian Schools, American Center for Law and Justice, American Federation for Children, Americans for Prosperity Foundation and yes. every kid, Anglican Church in North America, Association of Christian Schools International, Christian Legal Society, Council for American Private Education, Council for Christian Colleges & Universities, Council of Islamic Schools in North America, EdChoice, Ethics and Religious Liberty Commission of the Southern Baptist Convention, Evangelical Council for Financial Accountability, Family Foundation, Foundation for Moral Law, Illinois Family Institute, Innovative Schools, Institutional Religious Freedom Alliance, Jewish Coalition of Religious Liberty, Liberty Justice Center, Lutheran Church-Missouri Synod, Maine Heritage Policy Center, National Association of Evangelicals, National Legal Foundation, Partnership for Inner-City Education, Queens Federation of Churches, States of Arkansas, Alabama, Arizona, Georgia, Kansas, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska, Ohio, Oklahoma, South Carolina, Tennessee, Texas, Utah, and West Virginia, Union of Orthodox Jewish Congregations of America.
Outcomes: On June 26, 2019, the U.S. District Court for the District of Maine rejected plaintiff parents’ claim that Maine’s exclusion of religious schools from their town tuitioning program, a generally available public benefit program, violates the Free Exercise, Establishment, Free Speech, Equal Protection and Due Process Clauses of the First and Fourteenth Amendments to the U.S. Constitution. The Institute for Justice appealed the case to the U.S. Court of Appeals for the First Circuit. Oral arguments were heard January 8, 2020; on October 29, 2020, the First Circuit Court of Appeals delivered a unanimous en banc ruling against plaintiff parents. The Court ruled that Maine has the right to deny funding to a parent to pay tuition for a child at a school where religion is part of the school day. This case was appealed to the U.S. Supreme Court in a Petition for Writ of Certiorari. On July 2, 2021, the U.S. Supreme Court accepted the case. Oral arguments were heard December 8, 2021. Decision pending.
Why it Matters: Although town tuitioning is constitutional in Maine, there have been many challenges regarding the exclusion of religious schools. In 1981, the Maine legislature banned religious schools from participating in the Town Tuitioning Program that was first established in 1873. In 1999, the Maine Supreme Judicial Court upheld the exclusion of religious schools and the U.S. Supreme Court declined to review. Bagley v. Raymond School Department, 728 A.2d 127 (Me.), cert. denied, 528 U.S. 947 (1999). Religious school exclusion was also upheld in Strout v. Commissioner, Maine Department of Education, 178 F.3d 57 (1st Cir. 1999), and in Eulitt v. Maine Department of Education, 386 F.3d 344 (1st Cir. 2004). After the 2002 U.S. Supreme Court decision upholding the constitutionality of vouchers in Cleveland, the Institute for Justice, representing Maine families, asked a Maine court to overturn the 1981 law, but the exclusion of religious options was upheld. Anderson v. Town of Durham, 895 A.2d 944 (Me. 2006), cert. denied, 127 S.Ct. 661, 166 L.Ed.2d 512. Religious exclusion was later upheld in Joyce v. State, 951 A.2d 69 (Me. 2008).
Effects: Children using town tuition funding in Maine enjoyed attending religious schools until 1980, when a cautionary opinion from the state’s attorney general urged the legislature to avoid litigation by excluding religious schools as choices for parents. After Espinoza, it is clear that excluding religious schools based on their status as religious schools is contrary to the federal constitution’s First Amendment Free Exercise Clause. If the U.S. Supreme Court decides to accept this case, hopefully the high court will decide whether excluding religious schools based on the many ways in which funds are used, a question involving the First Amendment’s Establishment Clause, will be as clearly and conclusively addressed as the ruling in Espinoza.Amicus Brief Amicus Brief Amicus Brief