ACLJ Files Amicus Brief in Major Supreme Court School Choice Case – Tackles Bad Precedent


Walter M. Weber

September 18, 2019

6 min read

School Choice



The American Center for Law & Justice (ACLJ) has filed a friend-of-the-court brief at the U.S. Supreme Court supporting school choice in what could be a blockbuster ruling.

At issue in the case of Espinoza v. Montana Department of Revenue is the constitutionality of including – or excluding – religious schools from the list of beneficiaries of a state scholarship tax credit program. The ACLJ amicus brief asks the Supreme Court to uphold the program and to declare that states cannot discriminatorily exclude private religious schools just because they are religious. The ACLJ had previously filed a brief urging the Supreme Court to hear the case. On June 28, the high Court agreed to hear the case. Now the ACLJ has filed another brief, this time requesting the Court to uphold the school choice program.

The state of Montana allows a state income tax credit to donors who support private scholarship funds. The idea is that taxpayers get an incentive to support the scholarships, which in turn helps parents of limited means send their children to the school of their choice.

But after Montana adopted the tax credit program, the Montana state tax agency issued a rule that disqualified any scholarship fund that included religious schools as beneficiaries. Under that restrictive rule, a state agency declared that parents could use scholarships to choose secular private schools, but not religious private schools.

Some parents who wanted to send their children to religious schools then brought suit in state court, challenging the disqualification of such schools. In a victory for the parents, a state trial court agreed that the exclusionary rule was invalid. But the Montana Supreme Court reversed, holding that, under the Montana Constitution, the state was required to discriminate against religious schools.

The parents then filed a petition with the U.S. Supreme Court, contending that the state’s discrimination against religious schools violates the Free Exercise Clause and the Equal Protection Clause of the United States Constitution. The ACLJ filed an amicus brief supporting the parents, and the U.S. Supreme Court granted the parents’ petition to review the case.

Having convinced the Supreme Court to hear the case, the parents now have to convince the Court to rule their way and support religious liberty. The ACLJ weighed in on the side of the parents.

As we argue in our new amicus brief:

Governments often employ tax incentives (exemptions, credits, and deductions) to pursue desired social goods, such as the fostering of charitable works and the education of children. That the incentivized activities may involve religious entities or pursuit of religious goals is not a constitutional problem. . . . What the government may not do is discriminatorily exclude otherwise qualified, eligible entities solely because of their religious identity or activities.

As we note in our brief, the Supreme Court has previously declared that the Constitution “forbids hostility” toward “all religions,” and “commands that [a state] cannot exclude individual[s] . . . , because of their faith, from receiving the benefits of public welfare legislation.”

It follows that a government’s posting of a “no religious choices or entities allowed” sign, whether literal or figurative, would run afoul of both the Equal Protection Clause and the religion and speech clauses of the First Amendment.

The ACLJ has a special role to play in this case because of our previous work on behalf of school choice in the 2004 Supreme Court case of Locke v. Davey. In that case, a divided Supreme Court ruled against our client Joshua Davey, who was at that time a college student. Davey was stripped of a state scholarship after he announced his intention to major in theology and become a minister. In an unfortunate ruling, the Supreme Court approved the state’s barring of scholarship funds to Davey. In the new Espinoza case, the state relies upon Locke v. Davey to support its exclusion of religious schools from the scholarship program. We focus heavily on rebutting that argument.

First, we point out that, even on its own terms, Locke provides no such support for the decision below.

Locke did not purport to overturn any of this Court’s precedents. Nor did it challenge the notion that discrimination against churches as such would violate the Constitution. See 540 U.S. at 724 (distinguishing government action “evincing hostility toward religion”). To the contrary, Locke expressly distinguished a situation like the one here, where someone or something had “to choose between their religious beliefs and receiving a government benefit.”

Second, we point out that the Locke decision suffers from a number of defects that make it “especially ill-suited candidate for the construction of a new, religion-antagonistic body of law.” As we explain at length, the decision in Locke was both legally suspect and factually misguided.

[T]he restriction at issue in Locke, which supposedly furthered the goal of avoiding tax funding “for vocational religious instruction,” . . . was almost completely ineffectual. Scholarship recipients, including clergy in training, “were free to use their scholarships at ‘pervasively religious schools,’” . . . and could use scholarship funds for devotional theology study so long as they had declared a different major or were savvy enough not to declare any major [during their first two years of college, the only years when the scholarship applied]. Meanwhile, students like Joshua Davey were penalized for their voluntary declaration of a major that they were not even required subsequently to pursue. Ultimately, the haphazardly tailored restriction in Locke was no more than a penalty for a college freshman’s forthrightness regarding his expected major, or a punishment for his mistaken predictions about his future study plans.

(Joshua Davey, in fact, ended up going to law school and becoming an attorney, not a minister.) As we conclude:

The Locke Court should have struck down the restrictions at issue as an irrational penalty on free speech (declaring a major) and religious exercise (declaring one’s intent to pursue a religious vocation) that fails even minimal scrutiny.

School choice is a win-win. Parents select the program that best suits their educational plan for their children. Taxpayers save the money that public schools would otherwise have had to spend on the children. And society enjoys greater freedom and diversity, rather than having all children (except those wealthy enough to escape) forced into a one-size-fits-all program dictated by the government educational authorities. We hope the U.S. Supreme Court in Espinoza upholds the Montana school choice program and overturns the rule of religious hostility imposed by the Montana Supreme Court.

The U.S. Supreme Court is likely to hear oral argument in the case this fall or winter and issue a ruling in the spring of 2020.