This Supreme Court case could decide if government scholarships can be used for religious schools

January 21, 2020 | By DANIEL ORTNER
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On January 22, 2020, the Supreme Court will hear oral arguments in Espinoza v. Montana Department of Revenue. Espinoza, like PLF’s similar lawsuit Armstrong v. Kadas could potentially end policies like Montana’s that discriminate against religion.


Few people would argue that parents shouldn’t be able to decide how and where to educate their children. But the state of Montana is doing just that.

When Kathy and Jerry Armstrong’s son entered middle school, they felt their local public schools did not adequately nurture the values and character traits they wanted for their son’s education. Fortunately, they were able to afford to send their son to Valley Christian, an interdenominational Christian school in Missoula, Montana, that is known for its academic rigor and high standards of behavior.

The Armstrongs and their son were incredibly pleased with the education he received. Overall, parents with kids at a private or charter school are twice as likely to express satisfaction with their school compared to parents with kids at district schools.

But paying for a private school education for their children is simply not an option for many parents. To provide better opportunities for all students, state legislatures across the country have been enacting school choice programs that expand access to private schools. School choice laws give parents control over their children’s education and have been upheld as constitutional by the Supreme Court.

Despite the opportunity they provide, these highly effective and popular programs are being held back by anti-religious hostility. Many, though not all, private schools are religious in nature. Most parents send their kids to these schools for reasons unconnected to their religious character. But many state constitutions, including Montana’s, contain outdated provisions prohibiting even indirect aid to religious education.

In 2015 the Montana Legislature enacted a tax-credit scholarship program that would give all parents in Montana the same choice that Kathy and Jerry Armstrong had. However, rather than allowing parents the choice of sending their children to private religious schools, the Montana Supreme Court invalidated the program under a rigid interpretation of the state’s constitution. This interpretation was incompatible with a recent Supreme Court precedent declaring that it is a violation of the Free Exercise Clause of the First Amendment to forbid religious schools from participating even-handedly in programs like the Montana tax-credit scholarship.

Montana’s constitutional provision blatantly discriminates against religion. Moreover, at least nine current or past members of the Supreme Court have recognized that provisions like the one in the Montana Constitution were “born of bigotry.” In the second half of the 19th century, a wave of anti-Catholic hostility swept the nation in response to rising migration from Catholic nations in Europe. In response, taxpayer dollars were used to build public schools that featured a Protestant curriculum, including readings from the King James Bible and the use of Protestant hymns and prayers. At the same time, all public funding for private “sectarian” (a code word for “Catholic”) schools was outlawed.

Although an amendment to the Federal Constitution failed, a majority of states either voluntarily enacted amendments barring aid to religious schools or were compelled to do so as the price of statehood. These amendments are collectively known as the Blaine Amendments, named after one of the chief sponsors of the failed federal amendment. Unfortunately, more than 150 years later, these archaic constitutional provisions are still depriving parents of choice.

Pacific Legal Foundation filed an amicus brief on behalf of Jerry and Kathy Armstrong and the Association of Christian Schools International, urging the United States Supreme Court to review the Montana Supreme Court’s decision. The time has come for the Supreme Court to once and for all repudiate anti-religious bigotry and to allow parents the option of sending their children to the school that is best for them.