Derek Black is a law professor at the University of South Carolina who specializes in education, civil rights, and equity. His new book, which I have read and intend to review here, is Schoolhouse Burning. It is phenomenal. It is a new history of American education that documents the historic role of public education in our democracy from the Founding Fathers to the recent past.

Black writes:

Through a political lens, the Supreme Court decision in Espinoza v. Montana requiring the state to include religious schools in its voucher program makes perfect sense. Conservatives have long decried the fact they must foot tuition at their private religious schools while other students receive free education at public schools. Today they got their shot at fixing that.

But through a constitutional lens, the decision can be confusing to all but the constitutional experts.

First is the question of “mootness.” The dissent argues that the case should never have been decided at all because Montana’s voucher program is no longer in operation, but the majority decided the case anyway, reasoning that but for a flaw— the lower court’s flaw in striking the entire program down—the program would be operating to exclude religious groups.

With that out of the way, the majority hinges its opinion on the notion that a refusal to fund religious education is the same thing as religious discrimination. That logic, however, dismisses the tension between the constitution’s competing religious clauses: one barring the establishment of religion and the other guaranteeing the free exercise of religion. Because a state cannot establish or promote religion, it is understandable why it would not want to fund religious education–and that decision is distinct from actively discriminating against or limiting religious activities or adherents. The Court recognized as much in Locke v. Davey in 2003, when it held that Washington did not have to fund college scholarships for students pursuing degrees in devotional theology just because it provided scholarships to other students.

The majority in Espinoza acts as though it is flummoxed in understanding what Montana was trying to achieve. It cannot imagine any legitimate reasons. The most the Court can discern is that Montana’s bar on funding religious education is a hold-over from an anti-Catholic period in history. But there, too, the Court is overly simplistic. Without question, nativist and Protestants were hostile toward Catholics during the second half of the 19th century and hoped to “Americanize” them in public schools. But reducing states’ prohibitions on funding religious institutions solely to anti-Catholicism or nativism ignores the development of public education against the backdrop of religious education.

These no-aid rules also coincided with the rise of formal systems of public education. Prior to those systems, states had funded and relied on religious institutes for education. The patchwork of religious schools, however, eventually proved insufficient to meet the nation’s vast and growing educational needs. Public education at public expense was the solution.

When states like Pennsylvania, for instance, included public education obligations in their state constitutions, many began cutting ties with private institutions. They did not want to, in effect, finance the competition. Of course, the only notably private institutions out there were religious ones—hence the laws that prohibited aid to religious schools rather than the broader category of private schools.

In fact, when Montana revised its constitution in 1972, it made its shift away from any prior questionable motives clear. As the 1972 Constitutional Convention delegates explain in their amicus brief, Montana sought to build a wall around public funds because the “breathtakingly ambitious goals for Montana’s educational system—guaranteeing equal educational opportunity—required strict protection of the State’s funds for its public schools.” As to the specific prohibition on funding religious schools, the delegates wrote that “[r]ather than being motivated by anti-religious animus, many delegates urged adoption of the no-aid clause to protect religious institutions from government interreference” that would follow from becoming entangled with religious education.

Therein lies an important lesson for us: states’ prohibition on financing religious education represents the broader principle that government should not be in the business of financing private education—religious or not. And now that states are crossing that line, they are getting themselves into all sorts of legal problems, including finding themselves on the wrong side of a Supreme Court predisposed to find religious discrimination. And this is to say nothing of the fact that they are asking their public schools and students–which their state constitutions obligate them to support–to make sacrifices so that they can pursue policy fads in the form of vouchers. This, I explain in Schoolhouse Burning: Public Education and the Assault on American Democracy (, endangers not only public education but core values of American democracy.

All these flaws aside, the case immediately impacts only a few states because most of the states currently operating voucher and tax credit programs already permit their use at religious schools. But the case does portend another set of legal problems. Those states that don’t fund religious education have valid reasons. Staying true to those reasons demands that those states must regulate religious schools. As a result of Espinoza, they now have to worry about what is being taught in religious schools and how students are being treated. One way to fix that is to require that religious schools comply with all the same anti-discrimination protections that public schools do—the exact type of “interference” Montana’s 1972 Convention sought to avoid. This, of course, will open new debates about whose values should control—those of the wider public and government or those of religious schools–and further test our democratic values. The other easier fix is to just end their voucher programs altogether.