Cara Candal, Ed.D., is the Director of Educational Opportunity for ExcelinEd focusing on private school choice.
In the extraordinary year 2020, the phrase “educational opportunity” has begun to resonate with more parents and state leaders than ever before. As districts across the country remain closed or partially-closed to in-person learning, parents who can afford to are fleeing to private schools, which are more likely to be open. At the same time, to stem learning loss, a growing number of states are putting educational funding and power in the hands of parents, allowing them to choose the approved schools and services that meet their children’s needs. States are doing this by allocating federal CARES grants to programs that allow parents to choose educational services. They are also writing new legislation for tax-credit scholarships and education scholarship accounts—programs that enhance educational opportunities for those who are locked into school assignments based on ZIP code.
The road to educational opportunity hasn’t been easy, and in many states the main roadblock has always been legal. In 2020, 37 states had so-called Blaine Amendments in their constitutions—provisions that prevent the flow of public monies to private institutions, especially those that are faith-based.
In the spring of 2020, the Supreme Court of the United States (SCOTUS) delivered a blow to Blaine Amendments. The Court ruled that if a state (in this case, Montana) provides families access to private education via a tax-credit or similar program, then it may not exclude faith-based schools. This decision essentially invalidates Blaine Amendments in most states, where they were designed to prevent the use and expansion of faith-based schools.
While in Espinoza V. Montana Department of Revenue, SCOTUS specifically considered a tax-credit program, advocates may read the decision as an opening to push educational opportunity beyond the tax-credit. Using the decision, they can encourage more states to create programs that direct public education money directly to parents and to the educational institutions and services that students need. These programs are more stable (not dependent upon donations, which can wane with the economy) and more effective in providing families with a wide range of educational options.
While the majority opinion will change the law in most states, the concurring and dissenting opinions call into question the entire American system of education, which locks families into publicly-provided schools unless they can afford to pay for private education.
In his concurring opinion, Justice Alito suggested that the bigoted, anti-immigrant and anti-Catholic history of Blaine Amendments may be reason enough to invalidate them everywhere, even in Massachusetts and Michigan, states that the Court’s decision won’t affect. In his dissent, Justice Breyer asked: “If making scholarships available to only secular nonpublic schools exerts ‘coercive’ pressure on parents whose faith impels them to enroll their children in religious schools, then how is a State’s decision to fund only secular public schools any less coercive?” The idea that confining families to district school is coercive is one that opportunity advocates have long promoted.
To highlight the importance of all facets of the Espinoza decision and to better understand the pathways to opportunity that it opens for millions of schoolchildren, ExcelinEd and the Center for Education Reform offer this analysis from Paul Clement and his team at Kirkland & Ellis, LLP. Making the Most of Espinoza v. Montana Department of Revenue to Advance Education Opportunity parses the various opinions that SCOTUS provided in the Espinoza case and makes a compelling argument that advocates should feel empowered to offer new opportunity programs of all types in states where they might not have been possible just a year ago.
Understanding the Court’s opinion in detail will allow advocates to better understand the new opportunities that exist in each state and how to create programs to fit the needs of the people. This, in turn, could allow millions more students and families access to the educational opportunities they desire and deserve.
In this memo prepared for ExcelinEd and the Center for Education Reform (CER), Kirkland and Ellis LLP examines how the landmark U.S. Supreme Court case Espinoza v. Montana Department of Revenue may impact millions of families by granting them access to educational options beyond their ZIP code.View More