Minnesota school choice advocates look to landmark SCOTUS case

A United States Supreme Court case could boost Minnesota’s school choice movement after years of failed legislative attempts to create state grants, tax credits and tuition programs for families whose children attend private schools.

Espinoza v. Montana Department of Revenue is a landmark case with the potential to upend school funding across the United States by increasing parochial schools’ access to public money, experts say. Although the court’s decision is unlikely to have a dramatic impact in Minnesota, a ruling in favor of the Montana plaintiffs could give a boost to school choice advocates here as they again try to press their case at the Legislature.

The lawsuit centers on a Montana program that gave tax credits to individuals who donated to private, nonprofit scholarship organizations.

The Montana Department of Revenue said scholarship recipients couldn’t use the money at religious schools under a provision of the state constitution banning “direct or indirect” public funding of religious education programs. Thirty-seven state constitutions, including Minnesota’s, have these so-called Blaine Amendments, which were initially passed during a 19th-century wave of anti-Catholicism. 

A group of families sued in Montana, and the tax credit program was shut down after the state supreme court ruled that the entire program was unconstitutional. The U.S. Supreme Court is now considering whether Blaine Amendments violate the free exercise clause of the U.S. Constitution.

“The big question is, is it religious discrimination if you say religious institutions can’t get funding from the government, or is it protecting the establishment clause values of the Constitution that we shouldn’t have religion and government mix?” said Hamline University professor Marie Failinger.

After the Supreme Court heard oral arguments last week, NPR reported that “Chief Justice John Roberts and Justice Samuel Alito compared the exclusion of parochial schools from taxpayer-funded aid programs to unconstitutional discrimination based on race. That view suggested that Wednesday’s case has the potential for much broader public funding of parochial schools.”

A decision in favor of the Montana plaintiffs would have a smaller effect here than in some other states, Failinger said, because Minnesota courts have interpreted the state’s no-aid provision relatively loosely. A judge ruled in 1993 that indirect aid — in this case, state funding for high school student enrollment at religious colleges — didn’t violate the Minnesota Constitution.

Still, she expects that a court decision striking down Blaine Amendments would energize Minnesota’s school choice movement. Since 2000, legislators have considered a multitude of bills intended to increase private school choice, including programs to establish grants for low-income metro families, fund private school tuition for students at low-performing schools and create a tax credit system similar to Montana’s, but none have passed.

During the 2017 session, legislators included a tax credit program in a bill that was vetoed by then-Gov. Mark Dayton. Dayton’s veto message explained his opposition to the tax credit and, more broadly, to the use of public funding for private schools.