The Supreme Court closed out its January session this morning by hearing arguments in Espinoza v. Montana Department of Revenue, a landmark case that could transform the future of K-12 education in America.
The case began in 2015 when the Montana state legislature passed a policy giving donors an annual $150 tax credit for contributing to a state scholarship program. Soon after, the Montana Department of Revenue threw a wrench into the program’s implementation. Citing the state Constitution’s “Blaine Amendment,” which restricts public funds from going to religious organizations, the agency issued a rule that scholarship recipients can’t choose to attend religious schools.
Parents such as plaintiff Kendra Espinoza, a single mother using the scholarship to send her daughters to a private religious school, were left without the same educational freedom that other parents with means already possess. They challenged the rule in court.
The Supreme Court eventually agreed to hear the case, signaling that it might be willing to revisit its narrow ruling in a 2017 case, in which it asserted that a religious organization cannot be denied a publicly available government benefit simply because it is religious. However, a footnote in the decision limited the holding to that particular situation, narrowing the scope of the ruling.
This morning’s flow of arguments and questioning from the justices signaled that the ruling in Espinoza v. Montana Department of Revenue will likely be much more sweeping. Though the court’s liberal wing, Justices Sonia Sotomayor, Stephen Breyer, Elena Kagan, and Ruth Bader Ginsburg, seemed to disagree that the issue of religious discrimination was present, conservative Justices Brett Kavanaugh, Neil Gorsuch, and Samuel Alito asked questions that indicated their sympathy to Espinoza’s argument.
Arguments were promising this morning in Espinoza v. Montana Dep’t. of Revenue for the future of educational freedom. Debate at SCOTUS signaled that the decision will likely be 5-4 with Roberts as the swing.
— Kate Hardiman (@katejhardiman) January 22, 2020
Justice Kavanaugh specifically asked why the state’s action in this case did not directly violate the 2017 precedent and also provided helpful historical context that Montana’s lawyer largely ignored — noting that Blaine Amendments are historically rooted in “grotesque religious bigotry against Catholics.”
Justice Clarence Thomas, true to his style of respectful reticence, asked no questions at all. Yet the fact that both he and Gorsuch declined to sign onto the restrictive footnote in 2017 signals that they are likely willing to push for a broader ruling in this case.
As with most of the controversial cases this term, the decision will likely rest with Chief Justice John Roberts’ swing vote. Roberts was rather quiet during argument, perhaps because the impeachment trial stretched until 1:50 a.m. this morning. Yet the few questions he asked seemed to lean in favor of Espinoza.
As a former teacher, future lawyer, and opinion journalist passionate about the promise of school choice programs to empower all parents to direct their children’s education, it was a distinct pleasure to attend this morning’s argument in person.
Justices Thomas, Roberts, Gorsuch, Kavanaugh, and, ironically, Sotomayor are all products of Catholic schools. I hope their ruling will recognize and support the other parents in our nation who wish to have the same choice for their children.
Kate Hardiman (@katejhardiman) is a contributor to the Washington Examiner’s Beltway Confidential blog. She taught high school in Chicago for two years while earning her M.Ed. and is now a J.D. candidate at Georgetown University Law Center.
