By: Kristopher L. Caudle*<\/p>\n\n\n\n
The First Amendment to the United States Constitution provides two fundamental guarantees for all citizens: The government shall not establish an official religion; and the government shall not infringe upon a citizen\u2019s right to freely exercise their chosen religion. However, the Supreme Court continues to recognize areas where there is ample \u201croom for play in the joints\u201d between \u201cwhat the Establishment Clause permits and the Free Speech Clause\u201d requires. See Trinity Lutheran Church of Columbia, Inc. v. Comer<\/em>, 582 U.S. ___, 137 S. Ct. 2012 (2017)<\/a>.<\/p>\n\n\n\n This issue is frequently litigated within the context of education law: where the Supreme Court is called upon to determine whether, and to what extent, public funds may be used by parents and students attending private religious schools.<\/p>\n\n\n\n In Espinoza v. Montana Dept. of Rev.<\/em>, 591 U.S. ___, 140 S. Ct. 2246 (2020)<\/a>, the Supreme Court recently held, in a split decision, that the Montana Supreme Court\u2019s reliance on the \u201cno aid\u201d provision of its State Constitution, to invalidate a Montana legislative program providing taxpayer funds for scholarships to private religious schools, violated the First Amendment\u2019s Free Exercise Clause. The Court\u2019s holding now sends the State of Montana back to the drawing board in constructing public aid programs for private schools.<\/p>\n\n\n\n Montana\u2019s Legislature Enacts A Scholarship Program to Benefit Private School Students<\/strong><\/p>\n\n\n\n In 2015, the Montana legislature enacted a scholarship program to benefit students attending private schools, funded primarily through taxpayer dollars, to be used toward scholarships for tuition at \u201cqualified education providers\u201d under Montana law. See<\/em> Mont. Code Ann. \u00a7\u00a7 15-30-3103 (2019) et seq<\/em><\/a>. The scholarship program also required that the allocation of funds be administered in accordance with the \u201cno aid\u201d provision of Montana\u2019s Constitution.<\/p>\n\n\n\n Article X, Section 6(1)<\/a>, of Montana\u2019s Constitution prohibits governmental entities from making \u201cany direct or indirect appropriation or payment from any public fund or monies\u2026.for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.\u201d Mont. Const., Art. X, \u00a7 6(1). To reconcile the conflict between the \u201cno aid\u201d provision in Montana\u2019s Constitution and the terms of the scholarship program, the Montana State Department of Revenue implemented an administrative rule (\u201cRule 1\u201d) which altered the definition of a \u201cqualified education provider\u201d to exclude private religious schools within the State.<\/p>\n\n\n\n Competing Decisions in Montana State Court<\/strong><\/strong><\/p>\n\n\n\n Parents of three students enrolled at a private religious school in Montana were denied access to scholarship funds by the application of Rule 1. The parents filed a lawsuit against the Montana Department of Revenue and were awarded a preliminary injunction by a Montana trial court, enjoining the implementation of Rule 1. The Montana Supreme Court reversed the trial court\u2019s decision, upholding the injunction on Rule 1, but striking down the entire scholarship program because its enactment violated the \u201cno aid\u201d provision of the Montana Constitution.<\/p>\n\n\n\n The Supreme Court granted certiorari to address whether application of the \u201cno aid\u201d provision of Montana\u2019s Constitution to invalidate the State\u2019s scholarship program violated the Free Exercise Clause of the First Amendment.<\/p>\n\n\n\n Montana\u2019s Scholarship Program Intersects Both the Establishment Clause and the Free Exercise Clause<\/strong><\/p>\n\n\n\n Justice Roberts, writing for the Majority, concluded that Montana was free to enact its scholarship program under the Court\u2019s existing Establishment Clause doctrine but that the application of Montana\u2019s \u201cno aid\u201d provision was used to discriminate against parents of private school students simply based on \u201cthe religious character of the school\u201d in violation of the Free Exercise Clause. The Majority found the application of Montana\u2019s \u201cno aid\u201d provision indistinguishable with another government program struck down by the Court on Free Exercise grounds in Trinity Lutheran v. Church of Columbia<\/em>, Inc. v. Comer<\/em>, 582 U.S. ___, 137 S. Ct 2012 (2017)<\/a>. In Trinity Lutheran<\/em>, the Missouri legislature allowed pre-schools to apply for grants to renovate playground equipment but excluded sectarian pre-schools from applying for funds. The Trinity Lutheran <\/em>Court held that Missouri\u2019s government program violated the First Amendment because \u201cdisqualifying otherwise eligible recipients from a public benefit \u2018solely because of their religious character\u2019 imposes \u2018a penalty on the free exercise of religion that triggers the most exacting scrutiny\u2026\u2019\u201d Therefore, the Espinoza<\/em> majority reasoned that the blanket exclusion of tuition aid prohibited under the Montana Constitution fell squarely within the precedent set by Trinity Lutheran<\/em>, and that its application of the \u201cno aid\u201d provision could not survive the application of strict scrutiny.<\/p>\n\n\n\n Challenges by the Dissent<\/strong><\/p>\n\n\n\n In her dissent, the late Justice Ginsburg challenged the necessity of the Court\u2019s Free Exercise analysis. In her opinion, Supreme Court precedent required that a Petitioner demonstrate how \u201cdifferential treatment\u201d burdened their religious exercise. Because the Montana Supreme Court\u2019s decision invalidated the scholarship program in its entirety (impacting all private school students, religious and non-religious), in her view, the State\u2019s constitutional violation had been remedied without Supreme Court action.<\/p>\n\n\n\n Another dissent, authored by Justice Breyer, questioned the Majority\u2019s reliance on Trinity Lutheran<\/em>. Justice Breyer distinguished Espinoza<\/em> from Trinity Christian<\/em>, finding the facts in Espinoza<\/em> closer to the Locke v. Davey<\/em>, 540 U.S. 712, 124 S. Ct. 1307 (2003)<\/a>. In Locke<\/em>, the Supreme Court upheld a Washington State law that \u201coffered taxpayer-funded scholarships to college students\u201d on the condition that they \u201cnot pursue degrees that were \u2018devotional in nature or designed to induce religious belief.\u2019\u201d The Court reasoned that Washington\u2019s program was permissible under the Free Exercise Clause because the State had chosen not \u201cto fund a distinct category of instruction\u201d that was \u201cessentially religious.\u201d In Justice Breyer\u2019s opinion, like in Locke<\/em>, the Montana legislature had decided not to fund a scholarship program for a religious education designed primarily to \u201cinduce religious faith,\u201d which was quantifiably different than Trinity Christian<\/em>, where a state decided to exclude a religious pre-school from obtaining funds for improving playground equipment.<\/p>\n\n\n\n Back to Court in Montana<\/strong><\/p>\n\n\n\n Montana\u2019s state courts and legislature are now left to reconcile the future of tuition assistance programs for parents of private school children in Montana. The Court\u2019s holding in Espinoza<\/em> makes clear that parents of private religious schools should be on equal footing with parents of non-religious private schools in the receipt of public aid allocated by the State\u2019s legislature. However, as both the majority and the dissent recognized, government funded tuition assistance for private schools is not mandatory under state or federal law, and Montana\u2019s legislature may very well abandon or re-write central provisions of the scholarship program altogether.<\/p>\n\n\n\n For now, Espinoza<\/em> continues to refine the contours of the Court\u2019s private school-public aid jurisprudence within the joints<\/em> of the Establishment Clause and the Free Exercise Clause, providing fodder for further experimentation of taxpayer subsidy programs for non-public schools across the country.<\/p>\n\n\n\n * The author is a graduate of the UNC School of Law and former Executive Editor<\/em> at FALR who practices education law in North Carolina.<\/p>\n","protected":false},"excerpt":{"rendered":" By: Kristopher L. Caudle* The First Amendment to the United States Constitution provides two fundamental guarantees for all citizens: The government shall not establish an official religion; and the government shall not infringe upon a citizen\u2019s right to freely exercise their chosen religion. 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