Defunding American Public Education — by expanding religious schooling
This past week during the State of the Union address, President Trump paid special attention to an elementary school student from Philadelphia named Janiyah Davis. Trump used the occasion to announce that Davis would be receiving an “opportunity scholarship” so she could learn at a quality school of her family’s choice. That announcement would prove to be (at best) a muddling of the truth. The Department of Education later explained that the “scholarship” in question would be personally paid for by Secretary of Education Betsy DeVos; the tuition money supposedly coming from DeVos’ salary. Why was it worth it for the president to lie about a fake scholarship in front of the entire nation? Trump used this grandstand moment to promote a policy at the heart of both Janiyah Davis’ future and the future of American schooling: education tax-credit scholarships. To better understand this seemingly sweet moment during the State of the Union we have to look closely at an extremely important case currently being deliberated in the Supreme Court and its connection to religious school funding.
Espinoza v. Montana
In January the Supreme Court heard arguments in Espinoza v. Montana Department of Revenue, a somewhat over looked, but potentially system rattling education case dealing with the separation of church and state and the public financing of K-12 education. If the conservative led Supreme Court rules in favor of plaintiff Espinoza, Secretary Betsy DeVos, and the private education interests she unabashedly champions, will likely use the ruling to significantly alter American education funding and public school development as we know it.
The Espinoza Supreme Court case challenges an earlier state level ruling that eliminated a tax-credit program for funders of education scholarships in Montana. The program, started in 2015, was essentially a school voucher system that allowed families to select private religious or secular schools for their students. Schools would be compensated via scholarship funds and the financial backers of those scholarships would receive a tax deduction. In 2018 the Montana Supreme Court found that the tax credit program as a whole (regardless of school religious affiliation) violated a provision in the state’s constitution and eliminated the tax-credit and connected program for all private schools; religious or secular.
The Espinoza plaintiffs, made up of three religious families from Montana and represented by lawyers from the libertarian Institute for Justice law firm, argue that ending private school tax-credit scholarships harmed student chances at obtaining an education pursuant with the student’s family’s beliefs and that the program should be reinstated for all school types — private and parochial. The plaintiff families in the Espinoza case claim that limiting their school options to only secular public schools is a form of religious persecution, thus necessitating the need for the program.
The Montana program at the heart of the case was exceedingly small with only 25 students participating during the 2016–17 school year. The donation cap and subsequent tax credit was set at a paltry $150 maximum. Schools would need to court dozens of donors in order to take advantage of the more than $5,000 per student funding allowance; 50% of the average public school per-pupil cost in Montana. Based on these numbers the dismantling of the state program in question seems like a small loss when compared to the national level ramifications to education funding if the Supreme Court sides wholly with the Espinoza plaintiffs.
The Separation of Church and State in Education
For over a century the separation of church and state inside American schools has been largely influenced and dictated by Blaine Amendments, currently found in 38 state constitutions. Blaine Amendments are named after a proposed 1875 federal constitutional amendment blocking the use of public funds for religious schooling. Even though the amendment failed at the federal level it was eventually passed by state legislatures. Unfortunately, Blaine Amendments have their roots in 19th century Catholic persecution. Fearing the influence of Catholic educators on American education culture, Protestant politicians in the decades after the Civil War worked to block the expansion of Catholic schools across the country — a point expressly noted by Supreme Court Justice Brett Kavanaugh during oral arguments of Espinoza v. Montana.
The Espinoza case may decide whether Blaine Amendments are constitutional across the board. If the Supreme Court rules wholly with the plaintiffs, states will likely have to strike Blaine Amendments from their constitutions, or greatly modify existing language to accommodate the Supreme Court’s decision. States that allow tax-credit based education scholarships or state funded education vouchers will need to allow public funds to go to both secular private schools and religious schools. A majority of private primary and secondary schools in the US are operated by religious organizations, so without state level Blaine Amendments a majority of funding in voucher and tax-credit programs will likely go to religious schooling. Such a scenario would mark a major shift in education funding, and the wall between church and state, at least in terms of education, would develop a sizable hole.
Forcing state education departments to fund religious schooling will be a major win for Secretary of Education Betsy DeVos and the religious private education advocates she supports. Last month, as the Supreme Court was hearing arguments for the Espinoza case, DeVos visited her alma mater, Colorado Christian University, to speak with students, educators and conservative commentator Hugh Hewitt. DeVos shared her thoughts on the Espinoza case’s outcome: “The hope is that enough of the justices will see the argument in this and that it will either strike out the Blaine amendment completely at the state level or will deal a large blow to it that will allow for programs like this to be able to grow up more abundantly in states across the country,” said DeVos. At the same event, the Secretary also weighed in on a number of other religion related topics, some pertaining to education, such as her belief that prayer should be allowed in public schools, and other topics that one could argue are beyond the scope of DeVos’ role as Education Secretary, such the contentious political fight surrounding abortion rights.
Without question, who gets a say in often thorny policy debates matters, but when religion collides with American secular politics, who and what power ultimately decides policy becomes complicated. There are plenty of programs and actions the government funds that many people disagree with — foreign wars, agricultural subsidies, infrastructure that doesn’t directly support an individual’s community, but as US citizens, individuals generally have a say in civic matters and government programs and actions must adhere to the protections and liberties guaranteed in the United States Constitution. You can tell a Senator or Representative to not allocate funding to a war you disagree with through letter writing campaigns, public protesting, or other forms of civic involvement. If the politician in question goes ahead and backs the war, you can then persuade your fellow citizens to vote him or her out of office.
But the general citizenry of the United States do not have a direct say in the moral or operational workings of a religion. You cannot justifiably tell a minister how to marry his congregation members, or what form of God he or she should pray to and on which day of the week. If a person is not a member of a particular congregation or religious sect they don’t have much control in how that church should operate. If it’s a justifiable argument that non-members of an organized religion (such as various Protestant denominations) should not have a say in that church’s internal workings, then conversely, why should public tax money, which citizens do have a certain level of control over, go to a cause or organization citizens have no role or say in? This question illustrations the need for the separation of church and state, a foundational legal concept that protects both secular and religious governance.
The religious Montana families represented in the Espinoza case are potentially placing the organizations and schools they wish to access at risk from government oversight, because where public money goes so should equal protection under the law. Many religious schools teach and govern in accordance with religious doctrine and ideology, including one of the schools the Espinoza families wish to send their children. Stillwater Christian School in Kalispell, Montana teaches children in accordance with traditional Christian values, which likely don’t include the promotion of same-sex couple led families or the acceptance of non-heterosexual students. As the Stillwater school’s “Core Values” webpage shows, the school is committed to “…teaching values that reinforce families’ efforts to raise their children biblically.” For a non-denominational Christian religious institution that makes sense, but will that have to change if they receive public funding, which guarantees access and protection for all US citizens — including those individuals who do not live a supposedly “biblical” lifestyle?
Religious institutions and programs in other states, such as Wisconsin, are already dealing with how to balance religious freedom (including anti-LGBTQ+ doctrine) with publicly protected funding. Stillwater and other schools are putting themselves at great risk of government oversight. The potential for subsequent legal battles stemming from claims of persecution from non-religious families is increased if public funding is sent to religious schools. The years, or even decades, following such a reworking of American education funding could become a nightmare for state and federal courts — let alone for the students, families and educators involved.
Ramifications for American Public Schooling
Even if the Supreme Court does rule in favor of Espinoza, the majority group of justices could opt to narrowly define the ruling and only make their decision applicable to tax-credit based education funding schemes. This scenario seems likely based a previous case from 2017 involving public funding being used by religious organizations for playground equipment upgrades. In that case, Chief Justice John Roberts added a single line of text to his concurrence, clarifying that the case ruling only applied to playground equipment. That single line of legal clarification not only narrowed the case, but also the ramifications for school funding policy. The Espinoza case is much broader, but there is still a high likelihood that the court will seek to narrow their ruling — saving both future legislative work and extensive court time.
Writers Matt Burnam and Kalyn Belsha at the education outlet Chalkbeat do a good job at explaining the various reasons why both supporters and detractors of “school choice” programs are waiting on the Supreme Court’s decision with bated breath. If the court rules in favor of Espinoza, without narrowing the judgment to tax-credit programs, that leaves the door open to the expansion of school voucher programs, already present in at least 16 states, the District of Columbia, and Puerto Rico. It would be a boon for public education opponents if religious schools (the majority of private schools in the country) are allowed to take in school voucher dollars. Voucher funds, paid for through public tax dollars would follow students to private schools, non-public charters, and parochial schools, and not the traditional public school system in which the student resides. This drain on public funding could further deplete the resources of what the President has now decided to call “government schools”, leaving them without the supplies, well paid teachers, and educational programs to create successful students and citizens — thus further exacerbating the challenges faced by public schools, which the proponents of school vouchers frequently vilify as “failing”.
It is unlikely that any ruling on Espinoza will instantly change the dynamics of American education and its complex web of funding policies stretched across 50 states and thousands of school districts. But the Espinoza case will possibly mark a major turning point in the separation of church and state in the American education sphere, one that could have lasting ramifications for all US students. If public funding continues to leave traditional public school systems, there eventually won’t be many public schools to defend. No matter how the money flows, in the form of tax-credits, vouchers, or “school choice” funding configurations yet to be conceived, there will be winners and losers. It’s admirable to advocate for students like Janiyah Davis and the well meaning families in the Espinoza case, but the cost of expanding “school choice” to millions of other students and dismantling the wall between church and state must be carefully considered.
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To learn more about the Espinoza case and the conversation around the expansion of school choice via the funding of religious schooling listen to Episode #82 of the “Have You Heard” podcast which focuses on education policy.
