Supreme Court ruling protects religious options in Arizona school choice




The motto "Equal Justice Under Law" is carved into the pediment above the main west entrance to the Supreme Court. Photo by Nathan O’Neal | Cronkite News

The U.S. Supreme Court’s ruling in a school choice case in Montana won’t open any new doors in Arizona, but will ensure that parents here continue to have religious options when they use the state’s school choice programs.

On Tuesday, the high court ruled 5-4 that Montana can’t bar religious schools from a scholarship program that allows parents to send their children to private schools using state tax credits. The decision overruled the Montana Supreme Court, which struck down the program in 2018, ruling that it ran afoul of the state constitution’s prohibition on providing state aid to religious schools.

The ruling is unlikely to have any effect in Arizona, at least when it comes to allowing new school choice programs that include religious schools, said attorney Tim Keller of the libertarian legal organization Institute for Justice. Keller was one of the attorneys who worked on the Montana case. 

Arizona already has a robust school choice system, including empowerment scholarship accounts, a voucher-style program that allows parents to pull their children from public schools and instead use state funding for private schools, tutors and educational materials. Individuals and corporations can also receive tax credits for making donations to organizations that provide students with scholarships to attend private schools. Parents can already use those programs to send their children to private religious schools.

Where the high court’s ruling in Espinoza v. Montana Department of Revenue could affect Arizona is if there were ever legislation or a ballot measure to bar religious schools from participating in those programs, Keller said. 

“Going forward, it’s now clear that the federal Constitution requires that, if the state chooses to enact a school choice program, it must allow parents to select religious options as a part of that program,” Keller said.

Such an attempt would be highly unlikely to succeed in Arizona, at least at the Capitol. Republicans, who have been very supportive of ESAs and other school choice options in Arizona, control the legislature, and Republican Gov. Doug Ducey has been a staunch supporter of school choice, as well.

Arizona, like Montana and most other states, has a so-called “Blaine amendment” in its constitution which prohibits direct state aid to religious schools and institutions. The amendments are named for James G. Blaine, a congressman who sought to bar federal aid to religious schools in the late 19th century. 

Such prohibitions were largely rooted in anti-Catholic bigotry of the era.

The Arizona Supreme Court struck down a predecessor of the empowerment scholarship account program in 2009 on the grounds that it violated the state constitution’s prohibition on using public funds for private or sectarian schools. That program only permitted parents to use their vouchers to send their children to private schools. The current program, which allows parents to use the money for a variety of educational purposes, has been upheld by the state Supreme Court.

The U.S. Supreme Court’s ruling did not strike down Blaine amendments as unconstitutional, though Keller said it eliminates them “as an obstacle to passing school choice programs that are neutral with regard to religion, that give parents a genuine choice as to whether they want to educate their own kids in either a religious or non-religious education setting.”

Had the U.S. Supreme Court struck down the Montana program, it wouldn’t have threatened Arizona’s school choice system. Keller said the court ruled in 2002 that states wouldn’t violate the U.S. Constitution by including religious institutions in their school choice programs.

Arizona House Speaker Rusty Bowers, R-Mesa, and Senate President Karen Fann, R-Prescott, filed an amicus brief last year asking the high court to uphold the Montana program and overturn the state supreme court’s ruling.