A widely watched case heard by the U.S. Supreme Court on Wednesday pitting school-choice advocates against proponents of public schools has been described by both sides as having potential to profoundly reshape the national education landscape.
Yet it is unclear to what extent Espinoza vs. Montana Department of Revenue could affect Pennsylvania. The case centers on the Montana Supreme Court’s decision to end a state program that gave students scholarships to attend private schools. The court based its decision on a state constitutional provision that bars government money from going toward religious schools.
Pennsylvania’s constitution also restricts the use of public education funding for religious schools — and, like Montana, has programs that award scholarships to students to attend private schools.
Here’s what you need to know:
The case was brought by three Montana mothers of children in a Christian school who challenged a state decision that made students in religious schools ineligible for a scholarship program created by the state in 2015.
In response, the Montana Supreme Court struck down the program, based on language in the state constitution prohibiting the appropriation of government money for religious institutions.
Such provisions are sometimes called Blaine Amendments. Critics say the provisions, named after Congressman James Blaine, of Maine, reflect anti-Catholic bias in the mid-19th century.
Pennsylvania is among the 37 states with such provisions, according to the Institute for Justice, the nonprofit representing the mothers in the Espinoza case.
School-choice advocates and President Donald Trump’s administration are hoping the high court will strike down the provisions, which Education Secretary Betsy DeVos described as the “last acceptable prejudice.”
“Across the nation, many traditional public schools are not working, and the repercussions are posing great danger,” Jeanne Allen, CEO of the Center for Education Reform, and Paul Clement, U.S. solicitor during George W. Bush’s administration, wrote in a Time op-ed Tuesday.
Teachers’ unions and supporters of public schools, meanwhile, say such a ruling could jeopardize the broader public education system, validating private-school voucher programs they say would drain money from public schools.
If it rules in favor of the petitioners, “the Supreme Court will be responsible for unleashing a virtual earthquake in this country that threatens both religious liberty and public education," American Federation of Teachers president Randi Weingarten said Wednesday.
Like a number of states, Pennsylvania already has programs that give money to students to attend private and religious schools. The programs, which grant tax credits to businesses and individuals in exchange for donating to the scholarships, function similarly to vouchers.
But they don’t violate Pennsylvania’s prohibition against using public education money for religious schools for two reasons, said Colleen Hroncich, senior policy analyst at the Commonwealth Foundation, a conservative advocacy group in Harrisburg.
Pennsylvania’s constitution specifies that “no money raised for the support of the public schools of the Commonwealth” shall be used for any religious school. The money for the tax-credit programs comes from the state’s General Fund, which isn’t raised specifically for schools, Hroncich said.
And the state doesn’t give money directly to religious schools, she said. Rather, it gives tax credits to donors who support scholarships — many of which end up being used by students to attend religious schools.
Hroncich doesn’t believe a Supreme Court ruling against the Espinoza petitioners would doom Pennsylvania’s programs, “because they’re written so specifically as to be constitutional.”
But a ruling in favor, she said, “might inspire lawmakers to provide more options for our students.”
Republican lawmakers, including House Speaker Mike Turzai of Allegheny County, have pushed for the growth of the tax-credit programs — the larger of which grants $135 million a year in K-12 scholarships — citing unmet demand from families and donors. Gov. Tom Wolf last year vetoed an expansion of one of the programs, saying the measure didn’t provide enough accountability for tax dollars. He ultimately agreed to a smaller increase in the budget.
Donna Cooper, executive director of Public Citizens for Children and Youth, a public education advocacy group, said Pennsylvania’s tax-credit programs had not been tested by state courts. Depending on the court’s ruling, “we may end up rethinking” whether the tax-credit programs and their support for religious education is appropriate, Cooper said.
In addition, public-education advocates say the issue is about more than tax-credit programs. Petitioners in the Espinoza case are “seeking a broader constitutional ruling” that “could fuel future lawsuits” over whether private schools are entitled to public funding, said Chris Lilienthial, a spokesperson for the Pennsylvania State Education Association, the statewide teachers union.
“It really depends on how far the court is willing to go in its ruling, and how it handles this case," Lilienthal said.
During oral arguments in Washington on Wednesday, some conservative justices seemed favorable toward the petitioners.
Justice Brett Kavanaugh said the constitutional provisions in states barring aid for religious schools were rooted in “grotesque religious bigotry” against Catholics, according to the Associated Press.
Some of the court’s liberal justices, meanwhile, suggested the Montana court hadn’t discriminated because it ended the program for all private schools, not just religious ones. “So where’s the harm?” asked Justice Ruth Bader Ginsburg, the AP reported.
The New York Times reported that Chief Justice John Roberts — often seen as part of the 5-4 conservative majority on the court — “seemed to be searching for a limiting principle, one that would allow the scholarships but stop short of requiring state support for religious education in other contexts.”