In 2018, Montana Supreme Court struck down a tax-credit funded scholarship program that allowed low-income students to access private schools. The Montana Supreme Court reasoned that because students could take scholarships to faith-based schools, the entire program violated Montana’s Blaine Amendment, a 19th-century constitutional provision that prevents religious institutions from receiving public benefits, such as government funding. The case, Espinoza v. Montana Department of Revenue, was then accepted by the Supreme Court of the United States (SCOTUS). Today, the Court decided in Ms. Espinoza’s favor, holding that the application of the state’s Blaine Amendment discriminated against religious schools and families in violation of the Free Exercise Clause. Writing for the majority, Chief Justice Roberts states 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.”
While private school choice programs have proliferated in the U.S. despite Blaine amendments, in some states Blaine has remained the major obstacle. Today’s decision doesn’t mean that the 13 states that do not currently have private school choice programs will enact them; but it does mean that it will become that much more difficult for states to justify why private school choice programs don’t exist where parents want them.
What might a post-Espinoza landscape look like?
This favorable decision gives advocates momentum to rally in states where private school choice programs have been proposed or passed but struck down because of a Blaine Amendment. Of course, that doesn’t mean that legislators or state leaders will be receptive. Even under favorable conditions, high-quality private school choice legislation is usually hard-fought, requiring a strong bipartisan majority to pass. Finally, today’s ruling will certainly embolden opposition groups, such as the nation’s two major teachers’ unions, to find other means to prevent the passage of private school choice programs.
Advocates will have another leverage point in this unprecedented time: Due to the coronavirus pandemic, American parents have a glimpse into what their children experience at school. While the home learning that is taking place across the country does not, in most cases, mirror what children experience in classrooms, parents are seeing school curricula and teachers up close. Polls show that the COVID-19 crisis has led more parents to embrace educational choice.
Now, more than ever, advocates need to listen to parents to understand what they want and need, and parents say they want flexibility. Choice programs born in a post-Espinoza world should be flexible. They should consider families that desire public, private, homeschool and hybrid options and allow families to choose from a range of services and qualified providers capable of meeting specific individual needs. A student might be able to take a math class in their district, a chemistry class from a private school and/or receive special educational services from an approved private provider.
In 2020, attending a school of choice is still not a reality for the majority of families in the United States. Wealthier families can choose to pay private school tuition or vote with their feet and move to a high-performing public district, but a mere 1% of children in this country are able to access the private schools of their choice with some form of help from the government. Kendra Espinoza wanted her children in the school that met their needs, and she has fought long and hard to ensure that money is not a barrier. Today, because of her and the other petitioners, millions more families will have the right to find the best fit for their children, no matter what that learning environment looks like for them.
About the authors
Cara Candal serves as Director of Educational Opportunity, focusing on private school choice, for ExcelinEd. Cara has spent the last 10 years working in education policy as a Senior Fellow with both Pioneer Institute and the Center for Education Reform. She was also a founding team member of the National Academy of Advanced Teacher Education (NAATE) and a research assistant professor at Boston University in the Department of Educational Leadership and Development. Cara has authored/edited more than 25 papers and three books on education policy. She earned a Bachelor of Arts in English Literature from Indiana University, a Masters of Arts in Social Science from the University of Chicago and a Doctorate of Education from Boston University.
Tim Abram serves as ExcelinEd’s Associate Policy Director of Educational Opportunity. Prior to joining ExcelinEd, Tim worked as a public policy manager for VIPKid, a leading ed-tech company. Additionally, Tim has been an education policy fellow for Senator Chris Murphy and a public policy fellow for the National Alliance for Public Charter Schools. Tim also taught United States history in the Mississippi Delta as a Teach For America corps member. He earned a Bachelor of Arts in Public Policy Leadership from the University of Mississippi and a Masters of Education specializing in Education Policy and Management from the Harvard Graduate School of Education.