by Rep. Glenn Cordelli

The recent U.S. Supreme Court decision in the Espinoza v Montana Department of Revenue was a landmark decision relating to school choice and education freedom. The case revolved around a Montana law that was passed creating a tax credit scholarship program – similar to our NH program. The Montana Department of Revenue was the administrator of the program and developed program rules that denied parents from getting a scholarship to send their children to a religious school. The Supreme Court ruled that it was unconstitutional to exclude religious schools. But more about that later- I’d first like to discuss several prior Supreme Court rulings that laid the foundation for the Espinoza decision.

In 1922, Oregon passed a compulsory education law that required parents of children between the ages of eight and sixteen to send their child to the public school in the district where they lived. There were several exceptions specified in the law, but existing private schools feared being put out of business. The Hill Military Academy was an established school and filed suit. Likewise, the Society of Sisters of the Holy Names of Jesus and Mary filed suit against the state and Governor Pierce. The Society was a home for orphans which also maintained schools. The two cases were heard jointly by a district court that issued an injunction against the law. The State appealed directly to the US Supreme Court in a case that has been known as Pierce v Society of Sisters.

In 1925, the Supreme Court issued a unanimous decision against the state and the compulsory education law. Writing for the court, Associate Justice McReynolds stated that “The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.” Children are not mere creatures of the state? It seems as though some have come to a different opinion these days. Establishing the rights of parents is such an important principle.

The next Supreme Court decision that I believe needs to be discussed is the 2000 Michell v Helms case. This case was the result of 1981 federal legislation that shifted much education responsibilities and funding back to states. In Louisiana, some of that funding for educational materials and equipment was provided to religious schools. That funding was challenged and the case went up to the Supreme Count which in a 6-3 decision found that the funding was not unconstitutional. They stated that since funds were provided to both secular and non-secular schools, both religious and public schools, the state was not serving to advance religion. There was no “indoctrination” of religion and thus no violation of the “Establishment Clause” of the First Amendment which states that “Congress shall make no law respecting an establishment of religion”. No indoctrination, interesting.

Next in my timeline of cases comes the 2002 Zelman v Simmons-Harris case. Under federal court order, the State of Ohio had assumed control of the Cleveland schools and instituted a scholarship program. Under the program, tuition assistance was provided to low income families so that their children could attend the public or private school of their choice. Parents had the ability to choose a religious private school for the child. A group of Ohio taxpayers filed suit claiming that the program violated the Establishment Clause. In a 5-4 decision, the court found that the program was Constitutional. In the majority opinion written by Justice Rehnquist, he stated that “the Ohio program is entirely neutral with respect to religion. It provides benefits directly to a wide spectrum of individuals, defined only by financial need and residence in a particular school district. It permits such individuals to exercise genuine choice among options public and private, secular and religious. The program is therefore a program of true private choice.” Again as in the Mitchell case, as long as funds go to schools regardless of being secular or non-secular then there is no constitutional issue. And in this case, as in the Pierce decision, there is also the right of private choice by parents.

The Trinity Lutheran v Comer case in 2017 provided another landmark decision. This was a Missouri case in which the state was providing recycled tire playground materials to qualifying organizations. The Trinity Lutheran Church ran several pre-school and day care centers and applied for the materials. The State denied their application based upon a provision of their state Constitution often referred to as a “Blaine” or “no aid” amendment which prohibited direct or indirect public funds being provided to a religious institution. Trinity Lutheran filed suit alleging denial of their First Amendment rights. A 7-2 decision was handed down for Trinity Lutheran indicating the State decision violated the First Amendment Free Expression provision. It is interesting to note that Justice Breyer wrote that the First Amendment was not meant to prevent religious organizations from accessing government services such as police and fire.

Now on to the recent and probably most important decision – Espinzoa v Montana Department of Revenue. In 2015, Montana passed a tax credit scholarship program, similar to our NH program. The legislation placed management of the program in the Department of Revenue. The program was launched and scholarships award to families. Ms. Espinoza and two other families decided to send their children to the Stillwater Christian School. That is where the Department of Revenue stepped in and prohibited families from sending their children to religious schools, contrary to the legislation, citing the state’s Blaine amendment in their Constitution. Remember the Trinity Lutheran case we just discussed? So the families filed suit which went to the Montana Supreme Court which ruled in favor of the state, again citing their Blaine amendment. It was appealed to the U.S. Supreme Court which issued their decision in June. In a 5-4 decision, the court ruled for the Espinoza and other families.

In his opinion, Justice Alito wrote that if a state decides to fund private education institutions, it cannot discriminate against parents who choose to send their children to religious schools. This would be in violation of the Free Exercise Clause. He went on to write that “The program helped parents of modest means do what more affluent parents can do: send their children to a school of their choice.” Sound familiar – choice. Justice Gorsuch added “The Constitution forbids laws that prohibit the free exercise of religion. That guarantee protects not just the right to be a religious person, holding beliefs inwardly and secretly; it also protects the right to act on those beliefs outwardly and publicly.” And he also questioned “Does Montana seek to prevent religious parents and schools from participating in a public benefits program?”

So we now have U.S. Supreme Court rulings that children are not “creatures of the state”, that programs centered on the choices of parents are Constitutional, that if funds are provided to private schools, religious schools cannot be discriminated against. With the pandemic, we are starting to see more changes in education. These decisions will open up additional changes for educating our children based upon what parents think best, not restricted by the wealth or zip code. It will also mean the end of the state “no aid” or Blaine amendments. I will discuss the history of the bigoted Blaine amendments in a future letter. But in the mean time, parents you have decisions about schooling, but can also look forward to greater education freedoms in the near future.