Espinoza v. Montana Dept of Revenue

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