September 2020 Church & State Magazine | Cover Story

President Donald Trump and Education Secretary Betsy DeVos were feeling empowered. Just days after the U.S. Supreme Court issued a ruling favorable to taxpayer-funded private school vouchers, the two began scheming to find new ways to direct public funds into the coffers of private schools.

For a time, the two were insisting that taxpayer aid to private schools be a part of any new coronavirus relief bill. They even proposed using vouchers as a form of blackmail to pressure public schools to open this fall. If a public school system couldn’t safely re-open for in-person classes, Trump and DeVos said parents should get vouchers to send their children to private schools that were willing to open fully.

While those proposals didn’t become law, Trump and DeVos felt comfortable making them because the Supreme Court had just handed them a powerful new tool to undermine both church-state separation and public education. In a devastating ruling, the Supreme Court declared June 30 that if a state has a private school voucher plan, it may not exclude religious schools. In the process, a slim high court majority also eroded provisions in 38 state constitutions that bar tax funding of religion. 

The 5-4 decision came in Espinoza v. Montana Department of Revenue, a case involving a tax-credit plan in Montana designed to funnel tax funds to private schools, 94 percent of which are religious in that state. Montana’s Supreme Court invalidated the scheme, holding that it ran afoul of a provision in the state constitution banning public aid to religious institutions.

The U.S. Supreme Court, in a decision written by Chief Justice John G. Roberts, overturned the Montana high court ruling. Invalidating the program because it included religious schools, Roberts wrote, is a form of discrimination against religious institutions.

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

Furthermore, Robert ruled that Montana’s desire to separate church and state more stringently than the federal Constitution allows does not justify its action in this case. Cutting off public support, Roberts asserted, “burdens not only religious schools but also the families whose children attend or hope to attend them.” 

Americans United blasted the decision. 

“The Supreme Court’s Espinoza v. Montana Department of Revenue decision corrupts the foundational principle of church-state separation,” said Americans United President and CEO Rachel Laser in a statement. “The separation of church and state is a fundamental American value that protects religious freedom for all. This court has overturned decades of precedent in an effort to privilege certain religious beliefs and have them dominate our civic life.”

Added Laser, “Forcing taxpayers to pay for private religious education – as Montana’s tax-credit voucher program does – is a fundamental violation of their religious freedom. Because religious schools are the epicenter of religious influence on the next generation, it’s imperative that the members of the faith support those schools, not the taxpayers at large.”

As bad as the Espinoza ruling was, it could have been worse. Justice Samuel A. Alito wrote a concurring opinion asserting that the “no-aid” provisions found in 38 states’ constitutions are anchored in anti-Catholicism and should be struck down. Alito’s claims are historically inaccurate – the provisions were designed to protect taxpayers from being forced to support any religion – but his comments reflect a form of historical revisionism common in Christian nationalist circles.

Justices Clarence M. Thomas and Neil Gorsuch also wrote separately to express their view that nothing in the Constitution should bar state and local governments from being able to promote and subsidize religion.

Thomas believes that the language in the First Amendment that bars government from any “establishment of religion” should not apply to the states. For many years, his was a lone voice in promoting what mainstream legal scholars see as a fringe legal theory (although he got occasional support from the late Justice Antonin Scalia). He now has a heavy-handed ally in the fight.

The dissenting justices, led by Justice Ruth Bader Ginsburg, were appalled at how casually the majority overturned decades of church-state law. Writing jointly with Justice Elena Kagan, Ginsburg observed that the ruling by the Montana Supreme Court “does not place a burden on petitioners’ religious exercise. Petitioners may still send their children to a religious school. And the Montana Supreme Court’s decision does not pressure them to do otherwise.”  

Justice Sonia Sotomayor took an even sharper approach in her dissent. Calling the decision “perverse,” Sotomayor criticized the majority for abandoning established legal precedent.

“To be sure, petitioners may want to apply for scholarships and would prefer that Montana subsidize their children’s religious education,” Sotomayor wrote. “But this Court had never before held unconstitutional government action that merely failed to benefit religious exercise.”  

The fallout from the ruling was swift. Pro-voucher organizations, which for years have sought to compel states to fund religious education, crowed about the ruling, while public-education advocates were dismayed. 

“Let’s be clear about what we’ve witnessed with today’s decision in Espinoza v. Montana Department of Revenue – an extreme Supreme Court just joined the far-right effort to undermine one of our country’s most cherished democratic institutions: public education,” said Lily Eskelsen García, president of the National Education Association. “At a time when public schools nationwide already are grappling with protecting and providing for students despite a pandemic and mounting budget shortfalls, the court has made things even worse by opening the door for further attacks on state decisions not to fund religious schools. The detrimental impact this decision will have on students throughout this country is shameful and unacceptable.”

In South Carolina, Gov. Henry McMaster (R) decided the time was right to force a wide-ranging voucher plan onto the state and bypass the state legislature in the process.  

McMaster issued an executive order allocating $32 million for private schools under a program called Safe Access to Flexible Education (SAFE). McMaster pulled the money from a federal fund called Governor’s Emergency Education Relief (GEER) that was designed to help schools deal with the pandemic. Nothing in the GEER program, however, authorized giving GEER funds to private institutions.  (A state judge put the money on hold pending a hearing to determine whether the grants would violate the state constitution.)

Florida Gov. Ron DeSantis (R) also decided to raid GEER money to prop up private education, allocating $45 million for the state’s existing voucher programs.  

Where do we go from here? Americans United pointed out that one way to respond to the Espinoza ruling is to stop passing voucher plans. The high court made it clear that if a state has a voucher plan, it can’t exclude religious schools; however, it didn’t mandate that states set up voucher plans.

The time may be right for a coordinated effort to roll back voucher plans. Education researcher Diane Ravitch posits in her new book Slaying Goliath that what voters really want is not vouchers but public schools that are appropriately funded and supported. There is evidence to back this up: In 2018, voters in Arizona went to the polls and decisively approved a ballot measure to rescind an expansion of that state’s voucher plan that had been passed by the legislature, a pattern that has played out in dozens of states since the 1960s.

Americans United’s Laser called on Americans to reaffirm their commitment to public education. 

“Now that the Supreme Court has ruled that taxpayer-funded vouchers must fund private religious schools if they fund secular private schools, it is more important than ever that we fight to oppose all private school voucher programs. Public dollars should fund public schools, which educate 90% of our nation’s students,” said Laser. “Especially now that public schools have added distance-learning and other new educational services in response to the pandemic, every public penny should be spent on helping them provide quality education. We must reject the Trump-DeVos agenda of private school voucher programs that divert desperately needed resources away from public schools in order to fund private religious instruction. 

Added Laser, “All Americans, both religious and secular, who care about religious freedom should join us in fighting vouchers and being mindful of the important role federal judges can play in securing our rights. We need more judges who unabashedly support the Constitution’s promise of separation of religion and government.”