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Laws Across the Country Are Keeping Parents From Making Choices About Their Kids’ Education. The Supreme Court Should Strike Them Down

5 minute read
Paul D. Clement served as U.S. Solicitor General from 2004 to 2008.
Jeanne Allen is the founder and CEO of the Center for Education Reform

On January 22, the U.S. Supreme Court will hear arguments in one of the most significant education cases in decades, Espinoza v. Montana Department of Revenue. The outcome could change the landscape of schooling in America as we know it.

We have filed a friend-of-the-court brief on behalf of a dozen organizations and civil rights leaders who believe that protecting the constitutional rights of parents like Kendra Espinoza, the lead plaintiff, to direct the education of their children is essential to student success and our nation.

Espinoza is a single mother who had been working three jobs to send her daughters to a private religious school. She was precisely who Montana lawmakers had in mind when the state enacted a new scholarship program. But even though the legislature made the scholarships available to all, Montana officials told Espinoza she could not use the funds at a religious school, citing the state’s so-called “Blaine Amendment.” The provision, currently part of 37 state constitutions, originated with Rep. James G. Blaine of Maine, who in 1875 attempted to pass a federal constitutional amendment providing:

“[N]o money raised by taxation in any State for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.”

As widely documented, by “sect” and “sectarian,” the amendment (and its later incarnations) meant “Catholic,” as its target was mid-19th-century Catholic immigrants, who challenged the era’s Protestant-dominated public education system. Its introduction was mainly a result of the prejudice stirred by the aptly named Know-Nothing movement. The amendment narrowly failed at the federal level, but it spread in the states and continues to foster present-day animosity toward religion.

Modern-day supporters of the Blaine Amendment – including groups like the American Federation of Teachers and the American Civil Liberties Union – argue that Blaine Amendments protect schools from religious indoctrination and public funds from “advancing” religion. But Espinoza did not seek to advance religion. She sought to advance the education of her daughters and thought religious schools are the best fit.

As we argue in our brief, not only do parents possess a constitutional right to direct the education of their children, honoring this right leads to better schools and better educational outcomes. Working families in the United States like Espinoza’s understandably cherish this right. Across the nation, many traditional public schools are not working, and the repercussions are posing great danger. The U.S. Department of Justice reports “the link between academic failure and delinquency, violence, and crime is welded to reading failure.”

In 2018, an estimated 43% of American children were growing up in low-income families without the resources needed to cover basic expenses, much less send their children to their school of choice. Providing educational options outside of a family’s zip code breaks the link between the home a family can afford and the quality of education they can give their children. Research shows education choice programs have positive effects on academic outcomes, graduation rates, college enrollment, civic engagement, crime rates and parental and student satisfaction. Religiously affiliated schools in particular improve student achievement, attendance, and civic engagement.

As our brief explains, brain science confirms what every parent knows: not all children learn the same. We go on to cite Harvard Graduate School of Education’s Todd Rose, who affirms there is no such thing as an “average” brain; every person’s brain operates differently. A child’s individual learning style stems from the “unique ways” that his or her brain “retrieve[s] information and create[s] memory.”

Providing parents with choices helps parents tailor their child’s school to the particular child’s learning needs and styles. After all, parents who are empowered to make educational choices — whether by government programs or their own resources — do not necessarily make uniform decisions about their children’s education. They may leave one child in public school, while a second child attends private school, or select different non-public options based on each child’s situation.

The Supreme Court has repeatedly recognized that parents have a right to direct the education of their children. Yet from Montana to Pennsylvania, lawmakers’ best intentions can be frustrated as long as Blaine Amendments remain on the books.

Which brings us to this week’s case.

Montana officials invoked the state’s Blaine Amendment to deny Espinoza access to a critical educational benefit because of religion. When the case got to the Montana Supreme Court, that court went further and canceled the whole program to prevent any money from going to religious schools. The state claims that makes its decision “neutral” toward religion. To the contrary, it was bad enough when the state was denying Espinoza and her children a scholarship; now Montana is denying everyone a scholarship to prevent anyone from using funds at any school with a religious affiliation. That absurd result reflects the broad hostility underlying the Blaine Amendment — it is better for everyone to lose a benefit than for a single dollar to find its way to a religious school.

Espinoza’s case gives the Supreme Court the opportunity to address the inherent injustice of Blaine Amendments by striking down these relics of the past that continue to wreak havoc today. If the court seizes that opportunity, it will not only close a long and shameful chapter, but vindicate the rights of parents and children to be free of state-inflicted religious discrimination and ensure a path forward for their educational success.

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