Landmark Victory for School Choice and Religious Freedom

| September 17, 2020

The Supreme Court’s most recently completed term continued its expansion of religious freedom under the First Amendment.  Its decision in Espinoza vs. Montana Department of Revenue was the closest vote (a 5 – 4 decision) and the most aggressive application of the principles established in past terms.

The case was a significant win for advocates of school choice and those who believe that faith-based schools should be able to more fully participate in government programs.  In this landmark decision, the Court was faced with a school choice program the State of Montana sought to eliminate because it had to include religious schools.  The Court ruled that Montana had to maintain the program, and its act to eliminate a generally applicable benefit just to avoid participation by religious schools was a violation of the constitutional guarantee of freedom of religion.


The Espinoza case began in 2015 when the Montana Legislature passed a tax-credit scholarship program that enabled taxpayers to receive a $150 tax credit in exchange for donating to nonprofit scholarship organizations. These scholarship organizations provided scholarships to low-income students and students with disabilities as an alternative to public school to best serve the children’s interests.

Kendra Espinoza is a single mother who wanted to send her two daughters to Stillwater Christian School, a private Christian school that meet the statutory requirements for the tax-credit scholarship program.  The program was initially created to provide students with scholarships to attend any private school, religious or secular.  However, after its inception, Montana’s Department of Revenue established and added “Rule 1” to the program which declared that the scholarships could only be used for non-religious private schools.  The Department of Revenue took this position based upon Montana’s “no aid provision” in its constitution which prohibits public support for religious or sectarian institutions.

The Institute for Justice filed suit on behalf of Espinoza challenging Rule 1 and lost in the Montana Supreme Court. The Montana Supreme Court terminated the entire tax-credit scholarship program, arguing that it was unconstitutional because it violated the state no-aid provision by including religious options, and it would be impossible to separate religious private schools from secular private schools in this program. Espinoza appealed to the United States Supreme Court.


In this historic decision, the U.S. Supreme Court reversed the Montana Supreme Court, holding that the application of the state no-aid provision discriminated against religious schools and the families wanting to attend religious schools in violation of the Free Exercise Clause in the First Amendment. In his majority opinion, Chief Justice John Roberts emphasized that Montana’s program discriminated against religious schools because of the mere fact that they are religious: “Montana’s no-aid provision bars religious schools from public benefits solely because of the religious character of the schools. The provision also bars parents who wish to send their children to a religious school from those same benefits, again solely because of the religious character of the school.”

The Chief Justice built upon the Supreme Court’s ruling in Trinity Lutheran Church of Columbia, Inc. v. Comer (2017), where, as here, a church was denied a public benefit “solely because of their religious character.” Trinity Lutheran concerned a church playground – this case has expanded that reach to include a Christian school.


Although not expressly stated, the Espinoza opinion may signal the end of other state no-aid clauses.  Montana, and 36 other states, maintain a “no-aid provision” within their state constitutions.   This decision establishes a uniform standard of interpretation for state no-aid provisions, prohibiting most states from excluding religious schools in their school choice programs.

School choice advocates have hailed Espinoza as a victory for religious freedom and parental choice.  U.S. Secretary of Education Betsy DeVos released a statement following the Supreme Court’s decision and stated:  “Today’s decision is a historic victory for America’s students and all those who believe in fundamental fairness and freedom. Each and every student needs the freedom to find their education fit, and today the Highest Court in the Land has protected that right by ensuring that families can use taxpayer funds to choose schools that match their values and educational goals, including faith-based schools…Too many students have been discriminated against based on their faith and have been forced to stay in schools that don’t match their values. This decision represents a turning point in the sad and static history of American education, and it will spark a new beginning of education that focuses first on students and their needs…”



Category: Law

About the Author ()

Email | Website | Jocelyn Szymanowski is a principle with law firm of Ferguson, Schetelich & Ballew, P.A.. She received her Bachelor of Science degree in Criminal Justice from the University of Baltimore, her J.D. from Tulane University, and holds an LLM in taxation. Her practice focuses on business and non-profit organizations, real estate, tax, and banking. She is the author of Maryland Law of Religious Corporations, the leading text on Maryland Church Law. She was named a Rising Star by Super Lawyers Magazine.