Annaliese Nurnberg/Missourian via AP
The 2017 case Trinity Lutheran Church of Columbia v. Comer allowed a religious preschool to receive funding for a public-playground resurfacing grant program.
Conservatives have spent the past decade warning of the evils of government mandates, how they reduce freedom and damage liberty. But the conservative majority on the Supreme Court is poised to take the cues of far-right legal interests and mandate that states send thousands of taxpayer dollars per pupil to religious schools.
“From my perspective, it is really dangerous,” said Randi Weingarten, president of the American Federation of Teachers, in an interview with the Prospect. “It will encroach on religious liberty. It will encroach on states’ ability to put public dollars for public purposes. The issues are well beyond education.”
The case, Espinoza v. Montana Department of Revenue, seeks to overturn a Montana Supreme Court ruling that prohibited money from a voucher program to be put toward private religious schools, consistent with the state’s nearly five-decade ban on state aid for religious purposes. Thirty-seven other states have similar “no aid” provisions. But the plaintiffs, bankrolled by a right-wing organization called the Institute of Justice, are not simply trying to allow public voucher funding for religious institutions; they want to require it. And bizarrely, it may be part of a corporate scheme to extract yet another unnecessary tax break.
The case will be heard on Wednesday, January 22.
The Institute for Justice’s argument builds on a 2017 case, Trinity Lutheran Church of Columbia v. Comer, which allowed a religious preschool to receive funding for a public-playground resurfacing grant program. But two factors distinguish that case. First, the playground was public, and available to all members of the community to use. Second, Chief Justice John Roberts added a footnote in that case effectively invalidating it as precedent, saying it was only applicable to playground resurfacing and does “not address religious uses of funding or other forms of discrimination.”
Nevertheless, the Institute for Justice, whose funders have included the families behind Koch Industries and Walmart, as well as the family foundation of sitting Education Secretary Betsy DeVos, wants the court to apply Trinity’s outcome to Espinoza, and actually extend it by making states fund religious schools. Anything less, they write in their Supreme Court brief, would force students “to choose between attending a school that accords with her beliefs or receiving thousands of dollars in government benefits.” It’s effectively a court-ordered voucher program.
This case has garnered virtually no public or media interest, despite the implications on the separation of church and state, the free exercise of religion, the need to properly fund public education, and the doctrine of state’s rights (the plaintiffs want the Court to overturn long-lasting state constitutional provisions, some of which have been around since the Founding). In the 1780s, James Madison stopped a bill in the Virginia legislature that would have allowed taxpayer funding for “Teachers of the Christian Religion.” This would reverse Madison’s efforts, and all subsequent ones, by judicial fiat, under cover of a Bill of Rights that Madison drafted.
“You can tell that this is an incredibly chaotic time in America when a case like this has not gotten the attention that is due,” said Weingarten. “They’re arguing that it’s a natural extension of Trinity, and it isn’t. It’s an earthquake.”
Let’s back up. Since 1972, the Montana constitution has prohibited taxpayer funding for private schools, most of which in that state happen to be religious. In 2015, the state legislature passed a voucher program, which in a roundabout way it involves public money. Individuals and businesses who donate to private scholarship organizations get a state tax credit (up to a relatively meager $150), and those scholarships are given to children to attend private schools.
The Montana Department of Revenue, following the state constitution, then prohibited religious schools from the scholarship program, because of the ban on state aid for religious purposes. The Espinoza family and others sued, saying the scholarships were critical to keeping their children in a Christian school. The case traveled up to the Montana Supreme Court, which invalidated the entire program, because the tax credit, as read, would allow religious school scholarships.
So, to be clear, this voucher program does not exist in Montana. Nevertheless, the Institute for Justice, on behalf of the plaintiffs, appealed to the U.S. Supreme Court, saying that the Montana decision violated the free exercise of religion clause of the Constitution, as well as the equal-protection clause of the 14th amendment. The plaintiffs want the program restarted and applied to religious schools.
Montana, in its brief, not only respects the separation of church and state with its prohibition on state aid, it also says the measure respects the free exercise of religion, by not “gaining undue influence over religious schools.” Weingarten explains it this way: “Religious liberty is meant to be about practicing religion without government interfering. So what do you do, you have a voucher program on a religious campus, do you have an accountability system? Do you then close religious institutions that aren’t doing what they should do?”
The Court has grown more conservative since the Trinity ruling in 2017, with Brett Kavanaugh replacing Anthony Kennedy. But the fact that Roberts wrote the Trinity opinion, with that footnote, suggests that he may want to thread the needle on these questions where the establishment of religion clause and the free exercise of religion clause are in tension. But for a Court that has decided repeatedly in favor of religiously conservative viewpoints in recent years, finding a way out may be an optimistic scenario.
The Institute for Justice and its who’s-who of right-wing donors want to careen this case down a slippery slope. If you enable a state tax credit that funds a student attending religious school, you also have to give equal parity in all funding to public and private religious schools. That would siphon off large parts of education budgets. “We believe that the people who brought the case brought it to undermine public education,” Weingarten says. “With all the strikes we’ve seen, and the fights to fund our future, this is the last thing we need.” She noted that 90 percent of children attend neighborhood public schools, and this could undermine the entire system.
A parallel goal, amazingly, could be merely to win a tax break. Corporations can donate to these voucher scholarships, and while the Montana one is relatively modest in value, it’s a dollar-for-dollar tax credit, which is far better than most deductions. A similar program in Pennsylvania, with a much higher threshold, allowed the shell corporation of a charter school supporter a $337,000 tax credit for its donation; another supporter got $1.3 million in breaks. In all, hundreds of millions of dollars in tax credits have been filed in Pennsylvania since the program expanded in 2012.
Some of the larger donors to the Institute for Justice are corporate money managers, who may see value in the scheme. Susquehanna Investment Group, a high-frequency trading firm which was instrumental in getting the Pennsylvania program passed, has given the Institute $14 million since 2003.
The Court could, like in Trinity, try to limit the case to the theoretical circumstances of a now-shuttered state voucher program. Or it could press forward with the effective invalidation of 38 “no-aid” clauses in state constitutions.
“The intrusion here would turn the First Amendment on its head by saying it requires that states fund religious institutions,” said Weingarten. “I say this as someone married to a rabbi and a pretty religious person.”
