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The U.S. Supreme Court is back in session and will soon decide a case with nationwide implications for efforts to expand school choice, especially in states like Nebraska.

In 2015, Montana’s legislature decided that families — regardless of their income — should be able to choose the school that is best suited to meet their child’s individual needs.

It enacted a modest tax credit to incentivize donations to nonprofit scholarship organizations. In turn, those scholarship organizations would empower parents to exercise their constitutionally protected liberty to send their children to private schools; a liberty many parents cannot afford to exercise. The Montana Legislature followed the lead of 29 states and the District of Columbia in giving families genuine school choice. Nebraska legislators have, in recent years, tried unsuccessfully to enact a similar program.

But last year, the Montana Supreme Court struck down the entire scholarship program solely because it allowed families to select religious schools. The court’s reasoning relied on an archaic constitutional provision originally motivated by anti-Catholic animus.

The Montana parents who defended the program appealed the case to the U.S. Supreme Court. The federal constitution’s First Amendment requires government to be neutral — not hostile — toward religion. The Montana Supreme Court’s decision barring parents who receive scholarships from selecting religious schools for their children is anything but neutral.

Kendra Espinoza is a single mom and the lead client seeking to protect educational freedom before the high court. Kendra transferred her two daughters out of public school after her youngest struggled in her classes and her oldest was teased and bullied by her classmates. Kendra chose to send her daughters to Stillwater Christian School, where the two are flourishing.

Yet Kendra struggles to pay Stillwater’s tuition. She has worked nights as a janitor, in addition to her full-time job as an office assistant, just to afford the tuition payments. Kendra has also raised tuition money from her community by raffling off donated quilts and holding yard sales. Without the scholarships, Kendra may have to pull her girls out of Stillwater.

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The Montana Supreme Court invalidated the scholarship program based on its “Blaine Amendment,” which prohibits state aid to “sectarian” schools. Enacted in the late 1800s, its purpose was to prohibit state funding for Catholic schools, while preserving that funding for what was then a thoroughly Protestant public education system.

Indeed, the U.S. Supreme Court has previously recognized that it was an “open secret” that “sectarian” was “code for Catholic.” Thirty-seven states, including Nebraska have Blaine Amendments.

Kendra’s story is not unlike that of many parents, including parents in Nebraska. The Opportunity Scholarship Act (LB670), introduced by Elkhorn Sen. Lou Ann Linehan in 2019, would provide additional education opportunities to children who need them but whose families may not be able to afford the cost. But, during floor debate on LB670, some opponents raised the issue of constitutionality. 

Sadly, these Blaine Amendments have been depriving tens of thousands of America’s children robust educational opportunities. Thankfully, the U.S. Supreme Court can put a stop to this once and for all by declaring that states cannot use these bigoted state constitutional provisions to discriminate against families when states enact programs to provide children educational options.

Every child is unique, meaning there is no one-size-fits-all approach to education. Every family, regardless of their income, should be able choose a school whose mission and philosophy works for their children and reinforces what is taught at home.

And the federal Constitution should not permit bigoted Blaine Amendments to stand in the way of genuine educational choice.

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Tim Keller is a senior attorney at the Institute for Justice and represents the parents challenging Montana’s exclusion of religious options from its scholarship tax credit program.

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