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US Supreme Court rules State subsidy of private school education cannot exclude religious schools

Updated: Jun 29, 2022

Espinoza v. Montana Department of Revenue, decided on June 30, 2020 by a 5-4 divided United States Supreme Court, ruled that once a State decides to subsidize private education through scholarship or voucher type programs, it cannot exclude religious schools from the same funding. Montana established a tax credit program available to people who donated to private, nonprofit student scholarship organizations. The organizations then used the donated funds to provide tuition assistance for children attending private schools. However, because Montana’s Constitution contains a “No Aid” provision prohibiting public funding of religiously affiliated schools, the Montana Department of Revenue prohibited recipients of the tax-credit scholarship from using the scholarship at religious schools. Three mothers sought to use the tax-credit for their children’s private school tuition at Christian schools but were blocked, and filed suit.

The main question before the Court was whether the application of Montana’s “No Aid” provision to the scholarship program violated the Free Exercise Clause of the Constitution by prohibiting the scholarship to be used at private religious schools. The Free Exercise Clause generally forbids the government from hindering the “free exercise” of religion. The Court held that the application of Montana’s “No Aid” provision to the scholarship program discriminated against religious schools and their families “because of their religious status,” and was therefore invalid. The Court ruled that States “need not subsidize private education," however, once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

The case appears to assert, though not outright stating it as the standard, that any eligibility for government programs based on religious status is presumptively invalid. The Court noted, however, that government funding of religious study would still violate the Constitution (as discussed in a prior case, Locke v. Davey, which upheld the denial of a state-sponsored scholarship to a student pursuing a theology degree). 

Missouri’s Constitution contains a provision similar to Montana’s “No Aid” provision (See Art. IX, § 8 (“Neither the general assembly, nor any...municipal corporation shall ever make an appropriation or pay from any public fund…to help to support or sustain any private or public school…or other institution of learning controlled by any religious creed, church, or sectarian denomination…”). Therefore, this case may have implications in Missouri in situations when that “No Aid” provision is employed. In particular, this case appears to carry forward the principle in Trinity Lutheran v. Comer (the 2017 U.S. Supreme Court case that found Missouri DNR’s exclusion of a religious entity from the playground resurfacing grant program was unconstitutional) that “disqualifying otherwise eligible recipients from a public benefit solely because of their religious character” is impermissible. Further litigation on the issue seems likely given the current composition of the Court. Local governments should therefore continue to follow updates on the law surrounding government funding and religious institutions. 

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