Big Victory in Supreme Court School Choice Case


Walter M. Weber

July 1, 2020

5 min read

School Choice



Yesterday, the U.S. Supreme Court released an important ruling supporting school choice for parents. The American Center for Law & Justice (ACLJ) had filed a friend-of-the-court brief in the case, urging the high Court to uphold the school choice program at issue. In its 5-4 decision in Espinoza v. Montana Department of Revenue, the Court declared:

A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.

The case involved a Montana school choice program. Under the program, donors who support private scholarship funds may take a state income tax credit. The idea is that taxpayers get an incentive to support the scholarships, which in turn help parents of limited means or parents of children with disabilities send their children to the school they believe is best suited to their children’s needs.

As we explained previously, 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 forbidden to have a program that included 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 and Equal Protection Clauses 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. The ACLJ then filed a second amicus brief, arguing:

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.


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 Supreme Court agreed, embracing

the “unremarkable” conclusion that disqualifying otherwise eligible recipients from a public benefit “solely because of their religious character” imposes “a penalty on the free exercise of religion that triggers the most exacting scrutiny.”

Importantly, the Court specifically noted the adverse impact the state supreme court ruling had on parents’ right to choose religious education for their children. As Chief Justice Roberts noted in his majority opinion:

The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school. . . . At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits.

The Court noted as well that the state constitutional provision at issue, a so-called “no aid” clause, grew out of the nativist, anti-Catholic movement of the 1800s and thus was “born of bigotry.” A concurring opinion by Justice Alito elaborated on the “virulent prejudice” underlying such laws, specifically citing, among other sources, a law review article authored by the ACLJ’s very own Chief Counsel Jay Sekulow, together with ADF attorney (and former student of mine) Jeremy Tedesco. Justice Alito also noted the importance of school choice to parental rights to raise their children in accord with their values:

Today’s public schools are quite different from those envisioned by Horace Mann, but many parents of many different faiths still believe that their local schools inculcate a worldview that is antithetical to what they teach at home. Many have turned to religious schools, at considerable expense, or have undertaken the burden of homeschooling. . . . [The Montana program] provided necessary aid for parents who pay taxes to support the public schools but who disagree with the teaching there. The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice.

The ACLJ had 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. The state stripped Davey 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 Espinoza, the state defendants relied upon Locke v. Davey to support the exclusion of religious schools from the scholarship program. We focused heavily on rebutting that argument in our amicus brief, and we were pleased to see the Supreme Court handily reject the state’s invocation of Locke.

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. The Supreme Court’s decision in Espinoza overturns the rule of religious hostility imposed by the Montana Supreme Court and provides a ringing victory for school choice.

You can learn more about the ACLJ’s School Choice Initiative here.