Protesters gather as Education Secretary Betsy DeVos visits a school in Maryland. Sarah L. Voisin/The Washington Post via Getty Images

Supreme Court hands victory to school voucher lobby – will religious minorities, nonbelievers and state autonomy lose out?

The Supreme Court’s recent decision that Montana cannot exclude donations that go to religious schools from a small tax credit program could have consequences felt far beyond the state.

The 5-4 ruling in Espinoza v. Montana Department of Revenue, which came down June 30, follows on from recent cases that have expanded what counts as discrimination against religion under the U.S. Constitution, making it harder for states to deny grants to faith-based institutions.

From my perspective as a scholar of law and religion, this latest ruling could massively limit states’ ability to exclude religious schools from all sorts of funding, including controversial voucher programs which allow state funds to be used by parents to send children to a private school. And rather than preventing religious discrimination, the court’s decision may actually support a system that discriminates against religious minorities and those of no faith.

A win for voucher advocates

The Espinoza decision was quickly hailed as a major win by supporters of school vouchers, including Education Secretary Betsy DeVos. It isn’t the first time they have cheered the court.

In 2002, the Supreme Court, in Zelman v. Simmons-Harris, ruled in favor of a voucher program in Ohio which overwhelmingly benefited religious schools. The court held that the program did not violate the U.S. Constitution’s Establishment Clause which limits government support for, and promotion of, religion.

A school voucher rally take place outside the Supreme Court in 2002. AP Photo/Rick Bowmer

That decision broke with a long line of previous cases, which held that government could not use taxpayer dollars to fund religious education.

In the years following the Zelman decision, public support for school voucher programs has grown. The election of President Donald Trump and appointment of DeVos as education secretary gave the pro-voucher lobby powerful advocates in the administration. The White House has made vouchers a central plank of their schools policy, with Trump likening “school choice” – a term that includes the use of vouchers – as the “civil rights statement” of the decade.

Meanwhile, the Supreme Court has paved the way for religious schools to benefit from vouchers through a series of rulings.

In addition to Zelman, and as a precursor to Espinoza, the justices ruled in 2017 that a Missouri program that provided free playground chips for resurfacing, could not deny access to a religious school seeking to resurface its playground. In that case, Trinity Lutheran v. Comer, the justices held that refusing the grant contravened the Constitution’s Free Exercise Clause, which prohibits discrimination against religion, among other things.

Until then, the doctrine had been limited to situations in which a government discriminated against a religion through hostility toward that faith, such as when the City of Hialeah, Florida, created a series of ordinances to discriminate against the practice of Santeria.

In a footnote in the Trinity Lutheran case, the justices specifically noted that the decision was limited and did “not address religious uses of funding” such as for attendance at religious schools. But in Espinoza, the Supreme Court has essentially ignored that narrower reading. Instead, the court held that exclusion of donations to religious schools from the state tax credit program discriminates against religion.

Siphoning funds

This has significant implications for school vouchers. It could force states to include religious schools in any program that is open to private nonreligious schools.

So if a state allows for parents to use vouchers to take a child out of the public school system, then religious schools must be allowed to benefit from those funds.

But rather than preventing religious discrimination, the expansion of voucher plans, in my view, may actually encourage it.

The majority of private schools are religious – and in some areas with voucher programs, religious schools make up more than 90% of private schools.

In most districts, religious schools that can afford to take voucher students represent only a few larger denominations that are able to highly subsidize religious education. For example, in the Cleveland School District involved in the Zelman case, 96% of voucher recipients went to religious schools representing just one or two denominations.

But vouchers strip money from public education – every voucher going to a private school means a loss of per student funding for public schools.

This would force the parents of religious minorities, agnostics and atheists to choose between sending their children to a school that may provide religious teaching that goes against their wishes or leave their children in public schools that will be further drained of funding and students.

The Espinoza ruling did leave the door ajar a little when it comes to limiting vouchers to religious private schools. The court draws a tightrope-like line between discrimination based on religious status – the fact that a school is religious – and situations where the denial of funding is based on concerns the funds will support religious functions.

But precedent suggests walking this tightrope might be difficult for states and school districts. The Supreme Court’s decision in Zelman upheld vouchers for religious schools including those which proselytize. It is hard to imagine how a state might prevent funds from going to a faith-based school without it being seen as denying funding based on that school’s religious status.

Of course, states can simply not have voucher or tax credit programs for private schools – the Espinoza decision makes it clear that this is acceptable. And some states already do this. For example, Michigan explicitly prevents taxpayer money going to private schools regardless of whether those schools are religious or not.

But even these bans on taxpayer funding for private education are increasingly being challenged by school voucher enthusiasts and religious groups.

Put on notice

In Espinoza, the Supreme Court has put states and school districts on notice that if they have voucher programs they can not prevent taxpayer money from being used at religious private schools. That could leave some parents with an uncomfortable choice between sending a child to a public school that is losing funding as a result of vouchers or a religious private school that may proselytize their children.

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