Legal Spirits Episode 019: Oral Argument in the Blaine Amendments Case

Late last month, the Supreme Court heard oral argument in Espinoza v. Montana Dep’t of Revenue, a case on the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools. Petitioners argue that barring them from scholarships, simply because they plan to use the money at religiously affiliated schools, violates the Free Exercise Clause of the federal constitution.

In this episode, we review the facts of Espinoza and analyze last month’s oral argument. What concerns did the Justices raise and how did counsel respond? We also speculate what the Justices’ questions suggest about the ultimate outcome of the case. Listen in!

Movsesian on Espinoza

Over at Public Discourse today, I have an essay that attempts to predict the outcome in Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case currently under review at SCOTUS. (Marc and I will have a new podcast about the case up shortly). Here’s a summary of the essay:

The US Supreme Court seems likely to rule in a way school-choice advocates will welcome. The Court will likely overrule the Montana court and hold a ban on scholarships for students at religiously affiliated schools unconstitutional—an important ruling, to be sure. But a sweeping opinion seems unlikely. Rather, Espinoza is shaping up to be one of those closely divided, narrow decisions that have become familiar in the Court’s Religion Clause jurisprudence.

Predicting the outcome of a case on the basis of oral argument is tricky, but I’m foolhardy enough to try. Let’s see how I do.

Some Thoughts on the Espinoza Argument

Here’s a brief comment about Espinoza v. Montana Dep’t of Revenue, the Blaine Amendment case that the Court has under consideration. The Court heard oral argument in the case last week. It’s always tricky predicting the outcome of a case based on oral argument. But it seems pretty clear, at least to me, the the Court will ultimately rule in favor of the petitioners.

Followers of this blog know the facts of the case. (You do subscribe to Legal Spirits, right?) Briefly, the case concerns the constitutionality of a Montana school-choice program that allows parents to direct state-funded scholarships to religiously affiliated schools. The Montana Supreme Court ruled that the program violated the state constitution’s “Blaine Amendment,” which prohibits the appropriation of public money for “sectarian” institutions, including private, religiously affiliated schools, and canceled the scholarship program in its entirety. Petitioners argue that excluding them from otherwise available scholarship funds, simply because they planned to use the funds at a religiously affiliated school, violates the federal Free Exercise Clause.

Based on the Justices’ interventions, the Court seems likely to rule that, in these circumstances, barring parents from using public funds to pay tuition at religiously affiliated schools is unconstitutional. The Court’s cases point to that outcome. Zelman holds that the Establishment Clause isn’t violated when public money reaches religiously affiliated schools “wholly as a result” of parents’ “genuine and independent choice.” Trinity Lutheran Church holds that a state cannot deny a school access to public financial assistance simply because the school has a religious character. When you put these two cases together, it seems to me, the petitioners prevail.

That’s not to say their victory will be sweeping. For one thing, the Court seems likely to limit its holding to the facts of this case and avoid a ruling on the constitutionality of Blaine Amendments more generally. Moreover, the four progressive Justices signaled their strong disagreement with the petitioners’ Free Exercise argument.

Interestingly, two of the progressive Justices, Kagan and Breyer, who joined the Court in Trinity Lutheran Church, indicated that they see this case as quite different. Trinity Lutheran Church involved state funds specifically for playground refurbishment–a use unrelated to the religious character of the school in question. Espinoza, by contrast, involves unrestricted funds, which a school presumably could direct towards religious education. There is a case that suggests a state may refuse to allow its tax money to be spent for those purposes. But that case, Locke v. Davey, involved tax money for clergy training, not for general education at an accredited, religiously affiliated school–a distinction that will probably persuade the Court’s conservatives that Locke doesn’t apply here.

In short, oral argument suggests another of those familiar, narrow, 5 to 4, Religion Clause decisions. If that’s the case, Espinoza will be an important victory for school choice advocates–though not as sweeping as they might have hoped. Stay tuned.

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Around the Web

Here are some important law-and-religion news stories from around the web:

Garnett on School Choice and the Future of Catholic Schools

Nicole Stelle Garnett (Notre Dame Law School) has posted Are Charters Enough Choice? School Choice and the Future of Catholic Schools. The abstract follows.

This contribution to a Notre Dame Law Review symposium on “Law and Educational Innovation” critiques the oft-repeated assertion that private-school-choice programs, such as tuition vouchers or tax credits, are unnecessary because charter schools provide sufficient educational choices.  This essay is, in essence, a response to this “charters are enough,” argument. It proceeds from the simple reality that current education policy in most states offers Catholic school leaders an unacceptable ultimatum: If you want access to public education funds for your schools, then secularize and relinquish control of them. As a result of this ultimatum, Catholic schools will continue to close by the dozens in the inner city neighborhoods each year, and many of them will be replaced by charter schools, either by design or default. For reasons addressed in the essay, Catholic schools’ departure is a loss for civil society, especially for the urban communities where they have served for decades. Furthermore, it is a loss that could be mitigated by school-choice devices that make private schools financially accessible for the children living in these communities who desperately need the high-quality education that Catholic schools have long provided. Arguing that policy makers have failed to come to terms with the profound, unfortunate consequences of Catholic schools’ rapid disappearance from urban neighborhoods, the essay builds a case for a shift in education policy that embraces both charter schools and private-school-choice mechanisms.