The Other Branch: Exploring Espinoza v. Montana Department of Revenue

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Written by: Alyssa Evans and Bryan Kelley
Oct. 1, 2020

On June 30, 2020, the Supreme Court’s decision in Espinoza v. Montana Department of Revenue continued a line of prominent rulings with important implications for education policy, school choice, and the separation of church and state.

In 2002, the Supreme Court’s ruling in Zelman v. Simmons-Harris upheld school choice programs that allowed individuals to choose to use public funds at religious schools because “government aid reaches religious institutions only by way of deliberate choices [of individuals].” Consequently, some states have enacted school choice programs that benefit religious schools.

In the blog post “The Other Branch: Exploring Trinity Lutheran v. Comer,” we describe how a Missouri church seeking state funding to improve its preschool playground was denied because it was a religious organization. In 2017, the Supreme Court found this unconstitutional because the policy disqualifying religious organizations “expressly discriminates against otherwise eligible recipients by disqualifying them from a public benefit solely because of their religious character.” Many anticipated that the Trinity decision would open the doors to questions of state funding and religious schools. This became true in Espinoza v. Montana Department of Revenue.

In 2015, Montana passed SB 410, which created a tax-credit program to incentivize donations for scholarships for students to attend private schools. However, Montana’s state constitution prohibits “any direct or indirect appropriation or payment ... for any sectarian purpose or to aid any church, school, academy …” In light of this state constitutional prohibition, the Montana Department of Revenue  created a regulation specifying that the scholarships could not be used at religious schools.

In a subsequent lawsuit, a group of parents claimed that the new regulation discriminated against their children and the school in violation of the U.S. Constitution’s ban on laws that prohibit the free exercise of religion. The Montana Supreme Court found that the program violated the state constitution’s “no-aid” provision, and struck the entire program — ending the incentive for donations to scholarship programs altogether. The case saw appeals and ended up in the U.S. Supreme Court.

In a 5-4 decision, the Supreme Court ruled against the Montana Department of Revenue, stating that “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.” Although a footnote in the Espinoza ruling states that the ruling does not consider the constitutionality of state no-aid provisions, the impact of this ruling on other states’ provisions remains to be seen.

This decision may lead to more legal challenges to states’ constitutional provisions that bar public funding for private religious schools. Approximately 38 states have a state constitutional no-aid provision that ostensibly prohibits states from using public funds for religious schools. In an opinion piece analyzing the decision, one legal scholar suggests that “the majority opinion effectively says [these no-funding provisions] cannot be enforced, at least when they are directed at preventing aid based on the character or status of the recipient.”

This decision also changes the landscape for state school choice programs that exclude religious schools.

Despite the recent ruling, questions around public funding benefiting religious schools persist. The gymnastics policymakers must engage in when considering education funding policy, school choice policy and the effects of these policies on private religious schools is even more complicated with the addition of the Espinoza v. Montana Department of Revenue precedent.

Author profile

Alyssa Evans

Alyssa Evans

Policy Researcher at Education Commission of the States |

As a policy researcher, Alyssa contributes to the policy team's work in various areas of state education policy. Prior to joining Education Commission of the States, she worked as a legislative aide in the Colorado General Assembly. Alyssa earned a bachelor's degree in economics from the University of Denver and a master's degree in public policy and international law from the American University of Paris.

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