Archives for category: Religion

Jan Resseger writes here with her usual lucidity about the Espinoza decision, which cut another hole in Thomas Jefferson’s “wall of separation between church and state,” a long-sought goal of the radical right. To anyone who refused to vote for Hillary in 2016, this decision is yours.

Please open to read it all, along with the links.

She begins:

On Tuesday, the U.S. Supreme Court released a long awaited decision in the church-state separation case of Espinoza v. Montana Department of Revenue. Chief Justice John Roberts wrote the majority opinion in the 5-4 decision. NY Times Supreme Court reporter, Adam Liptak quotes Roberts’ argument: “‘A state need not subsidize private education…. But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.’ In dissent, Justice Sonia Sotomayor said the majority opinion ‘weakens this country’s longstanding commitment to a separation of church and state beneficial to both.’”

Although historically, religious liberty and church-state cases have been decided on the basis of the First Amendment’s “establishment clause,” this week’s decision rests on what’s known as the “free exercise clause.”

In a particularly lucid explication of this week’s decision, VOX’s Ian Millhiser explains: “The First Amendment places two limits on the government’s interaction with religion: ‘Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.’… Thus, the First Amendment’s Establishment Clause limits the government’s ability to advance religion, and the free Exercise Clause limits the government’s ability to target people of faith. The government is simultaneously obligated both to stay out of religious matters and to protect the rights of the faithful—a dual obligation that courts have often found difficult to reconcile.”

Millhiser continues, explaining that Roberts’ decision rests on a 2017 precedent: “As Roberts argues in his opinion, the result in Espinoza flows from the Court’s previous decision in Trinity Lutheran Church v. Comer… which held that the state of Missouri could not exclude religious organizations from a state program that offered ‘grants to help public and private schools, nonprofit daycare centers, and other nonprofit entities purchase rubber playground surfaces made from recycled tires.’… According to Roberts, Trinity Lutheran reached the ‘unremarkable conclusion that disqualifying otherwise eligible recipients from a public benefit solely because of their religious character imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.’ Just as the Missouri recycled tires program ‘discriminated against the Church simply because of what it is—a church,’ the Montana constitution ‘bars religious schools from public benefits solely because of the religious character of the schools.’”

The current Espinoza case was brought by several mothers whose children are enrolled in the Stillwater Christian School in Kalispell, Montana. Plaintiffs were represented by—and clearly recruited by—the Institute for Justice, a far-right, libertarian law firm which, for years, has set out to challenge First Amendment protection of the separation of religion from government. In this case, the Montana Supreme Court had already partially shut down the tuition tax credit program at issue in the case. Writing for Education Dive, Linda Jacobson reports that the program will now continue: “In Montana, the ruling means the scholarship program continues because the Montana Supreme Court granted a partial stay, allowing existing scholarship funds to be distributed while awaiting the U.S. Supreme Court’s decision.”

The Espinoza decision will affect the 37 states with what are known as Blaine Amendments in their state constitutions. Jacobson explains: “The statutes are named for James G. Blaine, a U.S. representative who tried, following the Civil War, to get a bill through Congress that would have denied any aid to sectarian schools. His legislation failed, but efforts to write such language into state constitutions were clearly more successful.”

Why are supporters of public education so concerned about the implications of this case? In the first place, voucher programs drain needed tax dollars out of public schools. In Ohio, for example, a state that already permits public funds to flow to religious schools, EdChoice vouchers extract $4,650 for each elementary and middle school voucher and $6,000 for each high school voucher—right from the local public school district’s budget.

Another serious problem with vouchers is that the law protects students’ rights in public schools, but the same laws do not protect students enrolled in private schools. Writing for Slate, Mark Joseph Stern worries that now, after Espinoza: “Taxpayers in most of the country will soon start finding overtly religious education—including the indoctrination of children into a faith that might clash with their own conscience. For example, multiple schools that participate in Montana’s scholarship program inculcate students with a virulent anti-LGBTQ ideology that compares homosexuality to bestiality and incest. But many Montanans of faith believe LGBTQ people deserve respect and equality because they are made in the image of God. What does the Supreme Court have to say to Montanans who do not wish to fund religious indoctrination that contradicts their own beliefs?”

Kevin Welner, a lawyer and specialist in education policy, wrote about the Espinoza decision at Valerie Strauss’s Answer Sheet in the Washington Post:

On Tuesday, the U.S. Supreme Court issued a decision that was once unthinkable. It required the state of Montana to set aside its own constitution’s ban on direct or indirect funding of religious private schools: “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious” (p. 20 of the slip opinion).

The principles underlying the U.S. Constitution’s establishment clause, while not yet dead, are in exceedingly poor health this morning.

To be fair, the wall of separation between church and state never really existed. But for a while, there was a fairly high fence. It protected religious institutions from entanglements with the government, and vice versa. In countries without such separation, state institutions such as schools can become instruments of the state’s preferred religion — as the writers of the U.S. Constitutions observed in England and other European countries.

England is, however, an instructive case of what can happen over time. The entanglement between the two institutions initially bolsters the church, but genuine religious beliefs are harder to impose than is nominal adherence to those beliefs. So Americans became more religious over time as they voluntarily brought church attendance and religious teachings into their lives. But the English became less so, even while maintaining state financial assistance for church schools to this day.

In the United States, that high fence of separation between church and state existed from approximately the mid-1940s through the mid-1980s. It transformed our essentially Protestant public schools into secular institutions attended by a cross-section of the population, including strongly religious families. That seeming contradiction of religious upbringing plus nonreligious schooling was, in fact, entirely consistent with Thomas Jefferson’s reasons for embracing a “wall of separation” to avoid government involvement that could corrupt free religious practice, while also protecting the government against church influence.

Churches and related religious institutions benefit from this arrangement in three key ways. First, the government stays away from the internal affairs of churches. While this can lead to fraud and abuse, it also protects religious liberty. Second, the government grants churches freedoms denied to other institutions, including the freedom to discriminate. Third, because “the power to tax involves the power to destroy,” churches are given an extraordinary number of tax benefits. This was outlined in an analysis published in The Washington Post in 2013:

When people donate to religious groups, it’s tax-deductible. Churches don’t pay property taxes on their land or buildings. When they buy stuff, they don’t pay sales taxes. When they sell stuff at a profit, they don’t pay capital gains tax. If they spend less than they take in, they don’t pay corporate income taxes. Priests, ministers, rabbis and the like get “parsonage exemptions” that let them deduct mortgage payments, rent and other living expenses when they’re doing their income taxes. They also are the only group allowed to opt out of Social Security taxes (and benefits).

As part of this exceedingly hands-off approach, church-affiliated institutions were not, in the past, eligible to participate in some government programs. For instance, while private religious colleges could receive aid to help students fund their education, the court prohibited state aid directly to religious K-12 schools.
Today’s Supreme Court does not share Jefferson’s vision. In fact, the court has been sawing away at the high fence for decades. In cases posing challenges to state funding of religious institutions, the court has steadily permitted greater and greater financial entanglements.

In fact, in a case three years ago called Trinity Lutheran v. Comer, the court pronounced that states can, under some circumstances, be constitutionally required to fund religious institutions, pursuant to the free-exercise clause of the First Amendment.

Will the Supreme Court’s Trinity decision lead to the spread of school voucher programs?
When providing a public benefit (in that case, state grants for playground resurfacing), the state cannot make religious status an impediment to receipt of that benefit — at least where the benefit is not directly supporting religious practice.

Even from this conservative court, the Trinity Lutheran decision was a bit of a surprise. Earlier, in 2004, in a case called Locke v. Davey in which the majority opinion was written by the very conservative Chief Justice William H. Rehnquist, the court found no constitutional impediment to a state prohibiting a college scholarship from being used directly to support religious practice, by excluding students pursuing a “degree in devotional theology.”

With those key precedents, the court today decided a case involving a neo-voucher law that had been adopted in Montana. The law used tax credits to create a funding mechanism for small vouchers (about $500 each) to help pay for private school tuition. Because the Montana state constitution includes a “no aid” clause that prohibits direct or indirect state support for church-controlled schools, the Montana Department of Revenue only allowed the law to go forward on the condition that religious schools be excluded.

A lawsuit called Espinoza v. Montana Department of Revenue challenged that ruling and made its way to that state’s Supreme Court. That court struck down the entire neo-voucher law, thus avoiding the possibility of anti-religious discrimination raised in Trinity Lutheran v. Comer, while also avoiding a violation of the Montana constitution. That should have ended the matter, but the U.S. Supreme Court decided to weigh in.

Before discussing the court’s decision in the Espinoza case, it’s important to step back and consider the unusual ideological extremity of the current Supreme Court. The court was designed as a moderating institution. One fundamental reason for this is that the more-extreme views of any single justice typically will have only a minimal impact on the court’s final decision. The court will only take the law as far as the “fifth vote” or “swing vote.” If four justices wanted, for instance, to declare all affirmative action programs unconstitutional, but the fifth vote in that case wanted to allow limited affirmative action programs under narrow circumstances, then the latter becomes the new legal standard.

The court also is designed to be somewhat insulated from political pressures, with justices appointed for life. One result is that presidents can ultimately be surprised by their appointments. We saw this, for instance, with Eisenhower appointee Justice William J. Brennan Jr. ending up to the left of Kennedy appointee Justice Byron R. White.

Yet the Supreme Court has now become almost as ideologically predictable as the Congress. And the ideological pendulum has become a one-way bulldozer — a process that started during the Nixon administration. The so-called swing justice went from Lewis F. Powell Jr. in the 1980s to Sandra Day O’Connor, to Anthony M. Kennedy to, now, Chief Justice John G. Roberts Jr. All of these were Republican appointees, but they’ve become more conservative with each new retirement. So the court has moved further and further to the right. There’s now a reliable five-justice majority on issues ranging from school vouchers and affirmative action to border control and deregulation.

I would be remiss if I did not mention here the most momentous and egregious event in this process of building the current ultraconservative court: the unprecedented obstruction of President Barack Obama’s nominee Merrick Garland.

Scalia died unexpected in February 2016, and Obama put forward Garland’s nomination in March. But Senate Majority Leader Mitch McConnell (R-Ky.) refused to allow any confirmation hearings, citing the presidential election to take place eight months later. President Trump eventually appointed Justice Neil M. Gorsuch to the seat, maintaining the conservative five-justice majority (which was soon strengthened with Justice Brett M. Kavanaugh replacing Justice Anthony M. Kennedy). Had Garland replaced Scalia, the swing justices (depending on the issue) would have been moderate-liberal justices Stephen G. Breyer, Elena Kagan and Garland — with Justices Ruth Bader Ginsburg and Sonia Sotomayor reliably to their left. Even though Garland was generally seen as a moderate judge, this would have been the court’s most momentous shift to the left since the 1960s. Decisions like that handed down today would have looked far different.

But the Espinoza decision was itself decades in the making. The legal landscape for vouchers supporting private religious schools has changed 180 degrees, corresponding to the shift in the makeup of justices on the Supreme Court. Vouchers for religious schools have moved from being broadly understood to be constitutional forbidden in 1970s to constitutionally allowed in 2003, via the Zelman decision, to now arguably constitutionally required, at least under the Montana circumstances.

Let’s return to that high fence mentioned earlier. Once the Supreme Court decided to hear the Espinoza case, we were left to hope that it would at least leave in place a speed bump of separation between church and state.
What we got instead is a shotgun marriage between church and state.

The court’s decision this morning held that application of the “no aid” provision in the Montana state constitution was barred by the Constitution’s free-exercise clause. The Montana provision prohibited any direct or indirect aid to a school controlled by a “church, sect, or denomination.” Like the dispute at issue in the Trinity Lutheran case, this prohibition was based on status as a religious institution, rather than a religious use. But the court’s Espinoza majority opinion — written by Roberts and joined by the other four conservative justices — also minimizes that distinction, which was important in Locke and potentially crucial to the decision in Trinity Lutheran:

“None of this is meant to suggest that we agree with the Department [of Revenue] that some lesser degree of scrutiny applies to discrimination against religious uses of government aid. Some Members of the Court, moreover, have questioned whether there is a meaningful distinction between discrimination based on use or conduct and that based on status. [Citations to Justices Gorsuch and Thomas]. We acknowledge the point but need not examine it here. It is enough in this case to conclude that strict scrutiny applies under Trinity Lutheran because Montana’s no-aid provision discriminates based on religious status. (Page 12, with internal citations omitted.)”

Here’s more critical language, from pages 13-14 of the court’s slip opinion (with internal citations omitted and emphasis placed on one sentence):

“Locke differs from this case in two critical ways. First, Locke explained that Washington had “merely chosen not to fund a distinct category of instruction”: the “essentially religious endeavor” of training a minister “to lead a congregation.” Thus, Davey “was denied a scholarship because of what he proposed to do — use the funds to prepare for the ministry.” Apart from that narrow restriction, Washington’s program allowed scholarships to be used at “pervasively religious schools” that incorporated religious instruction throughout their classes.”

By contrast, Montana’s constitution does not zero in on any particular “essentially religious” course of instruction at a religious school. Rather, as we have explained, the no-aid provision bars all aid to a religious school “simply because of what it is,” putting the school to a choice between being religious or receiving government benefits.

At the same time, the provision puts families to a choice between sending their children to a religious school or receiving such benefits. Second, Locke invoked a “historic and substantial” state interest in not funding the training of clergy, explaining that ‘opposition to … funding “to support church leaders’ lay at the historic core of the Religion Clauses.” … But no comparable “historic and substantial” tradition supports Montana’s decision to disqualify religious schools from government aid.

The court concludes, “[I]t is clear that there is no ‘historic and substantial’ tradition against aiding such schools comparable to the tradition against state-supported clergy invoked by Locke.” (p. 16). But this historical focus was a side note in the court’s earlier Locke decision. What Roberts did this morning was to limit Locke to its unique facts, marginalizing its usefulness as a precedent.

But note that sentence in bold from the passage above. A state’s constitution is given meaning by the state’s courts. Imagine if, upon remand, the Montana Supreme Court issues a new decision, saying something like: “In view of the U.S. Supreme Court’s decision, we interpret the ‘no-aid’ provision in our state constitution to prohibit any direct or indirect financial support to religious instruction in church-controlled schools.”

This would allow a voucher law that provides support to religious schools but not to religious education. Implementing or enforcing that funding mechanism would entangle the state with the operations of the religious schools, but it would seem doable. Would the Roberts court find that approach to be constitutional, or would it further restrict the reach of Locke?

What’s clear for now is that the long-standing “tuitioning” voucher systems in Maine and Vermont, which are limited to nonreligious private schools, cannot stand. There will have to be a shotgun wedding between church and state in those two states.

Other implications, which will reach beyond school vouchers, will emerge in the upcoming months and years.

Peter Greene worries that the Espinoza decision is another step in the movement to establish the principle that the public should fund religious schools. He believes this is ominous.

I don’t disagree. That’s why Trump and DeVos celebrated the Court’s decision that all state scholarships for private schools must include religious schools. I was pleased that the Court did not take the final step that would completely eliminate any state bans on funding religious schools. That would have the public pay for thousands of religious schools, as well as ersatz religious schools, of meager or low quality. They left open the future disposition of cases that test the legitimacy of state constitutional prohibition of paying for religious school tuition. This underscores the importance of the 2020 election and of ousting Trump. No more justices who would destroy public education.

Greene begins:

The Supreme Court has, as expected, poked another hole in the wall between church and state; it will weaken public education and open the door to making taxpayers foot the bill for religious discrimination.

Espinoza v. Montana Department of Revenue has further extended the precedent set by Trinity Lutheran v. Comer, a case that for the first time required “the direct transfer of taxpayers’ money to a church.” Historically, the free exercise clause of the First Amendment has taken a back seat to the establishment clause; in other words, the principle was that the government’s mandate to avoid establishing any “official” religion meant that it could not get involved in financing religious institutions, including churches or church-run private schools.

This has been a big stumbling block for the school voucher movement, because the vast majority of private schools that stand to benefit from vouchers are private religious schools. In fact, where school vouchers have been established, they are overwhelmingly used to fund religious schools.

But for several years, conservative fans of school choice (including Secretary of Education Betsy DeVos) have been pushing the argument that a religious school is not free to exercise its religious faith if it does not get to share in taxpayer dollars. The wall between church and state has thus been characterized as discrimination against religion, and as conservatives celebrate this decision, they repeatedly characterize it as a blow for freedom. Turns out you can’t be really free without taxpayer funding.

There are a host of problems with the SCOTUS decision and the arguments behind it.

For one, the freedoms that private religious schools wish to enjoy include the right to discriminate. Choicers like to argue that vouchers make families free to choose, but private schools are free to reject students for any reason they choose. Investigations found that Florida’s robust voucher program funnels millions of dollars to schools that reject or expel LGBTQ students and faculty. Because Florida imposes little accountability on its private schools, the Orlando Sentinel also found private schools teaching about the happy co-existence of white owners and Black slaves in the pre-Civil War South as well as how men and dinosaurs once lived together.

For taxpayer dollars to flow to private religious schools, one of two choices has to be made. Either private schools retain their freedom to operate as they please, or they are accountable to taxpayers for living under the same rules as a public school. The former opens up the possibility of students being taught ideologically based falsehoods, even as taxpayers fund schools to which their own children would not be admitted. The latter means that private schools would trade a financial windfall for a loss of autonomy, maybe even have to accept some of Those Peoples’ Children in their private school. Sometimes we forget that the wall between church and state was also meant to protect the church; when you mix religion and politics, you get politics.

Steve Hinnefeld blogs about education. He is based in Indiana, which has funded charters and vouchers, the latter despite a state constitution that bans funding religious schools.

He writes here about the Supreme Court’s Espinoza decision that held that religious schools must be included in state programs that fund private schools (almost all state voucher programs already fund religious schools, in fact, I can’t think of one that does not do so).

Hinnefeld interviewed a legal scholar, who explained how misinformed the Court was:

The majority opinion — and especially concurring opinions by Justices Samuel Alito and Clarence Thomas — framed the decision as a blow against anti-Catholic bias enshrined in state constitutions via 19th century “Blaine amendments.” But that view papers over complex history, said Steven K. Green, a legal scholar at Willamette University and a leading expert on church-state issues.

Green told me it was disappointing that the court, in a highly consequential decision, “relied, to a certain extent, on a shortsighted view of history, not recognizing the nuances behind the development of the no-aid provisions.” Green elaborates on that history in an amicus brief submitted to the court on behalf of several Christian religious organizations that supported Montana’s position.

Blaine amendments get their name from James Blaine, a Maine congressman and senator and U.S. secretary of state in the late 1800s. In 1875, Blaine introduced a constitutional amendment to prohibit federal funding of religious institutions. It failed, but some states adopted similar provisions for state funding.

The late 1800s were a time of rising anti-Catholic and anti-immigrant bias. In Indiana, the nativist Know-Nothing Party gained a large following. But restriction on state funding of religion “predates the Know-Nothings and the Blaine amendment,” Green said. “And it occurred in places where there was not that much religious strife.

“Without a doubt, a lot of people, during the Blaine amendment arguments, certainly raised anti-Catholic rhetoric,” he said, “But that misunderstands the origins and purpose of the no-funding provisions. The nuance is just left out.”

For one thing, 15 of the state Blaine amendments predated Blaine and his proposal. Michigan was the first state to put a ban on state funding for religion in its constitution – in 1835, when Blaine was 5 years old.

Wisconsin followed in 1848 and Indiana in 1851. I’ve read the notes from the Indiana constitutional convention, and there is no anti-Catholic animus there. In Indiana and in other states, the primary concern was to ensure adequate funding for the public schools they were beginning to establish.

Green said the Supreme Court also ignores history when it downplays the importance of keeping church and state separate.

The First Amendment includes two clauses concerning religious freedom: it forbids “the establishment of religion” and bans laws that prohibit “the free exercise” of religion. The framers of the U.S. Constitution, especially Thomas Jefferson and James Madison, were deeply concerned that state support for religion would entangle government with churches: hence the establishment clause and Jefferson’s famous words about “a wall of separation” between church and state.

“The court seems to say the provision on establishing religion has to take a back seat to the free exercise clause,” Green said.

Consequential Court decisions based on misinformation and error should be overturned.

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.

The Supreme Court ruled 5-4 that states with private school scholarships must provide similar funding to religious schools. This was bizarre because the Montana Supreme Court had already banished the state’s private school scholarship program, which offered $150 to families that chose private schools and sought a state scholarship. So the state of Montana will not owe $150 to the Espinoza family.

Pastors for Texas Children criticized the ruling:

For Immediate Release June 30, 2020

Statement on the Supreme Court Decision in Espinoza

Contact Charlie Johnson, Executive Director 210-379-1066 Cameron Vickrey, Associate Director 704-962-5735

Fort Worth, TX – The Supreme Court decision today in Espinoza v. Montana Department of Revenue is an attack on God’s gift of religious liberty for all people.

In ruling that states must allow religious schools to take part in programs that provide state-sponsored scholarships, the freedom of religion for us all is jeopardized.

“For the State of Montana, or any governmental authority, to divert money from public schools to underwrite religious schools is patently wrong,” said the Rev. Charles Foster Johnson, executive director for Pastors for Children.

A tuition tax credit for religious school scholarships takes dollars away from the state treasury for public schools and diverts those dollars to subsidize private religious schools.

Why does the State of Montana, or any state, have any role or agency whatsoever in religious schools?

Public schools accept all children regardless of race, class, status, disability, sexual orientation, and religion. They are where students of all faiths and no faith encounter one another in mutual understanding, where our nation’s constitutional values of religious liberty and respect across lines of difference are lived every day. They protect marginalized students, especially poor students, disabled students, students of color, and LGBTQI+ students.

That’s why the taxing authority of state government supports them.

And why it should stay out of our church schools.

Will Montana religious schools now be required to accept all students who apply?

It is the very nature of a private school to be exclusive. Private religious schools were not formed to be religiously neutral. They are voluntary assemblies protected by the First Amendment to advance and establish religious conviction and teaching. These religious schools constitute a core religious mission. They should be protected from government intrusion.

Let private schools remain private, public schools remain public. Common sense Americans know this. Such wisdom that has sustained our country since its inception escaped the Supreme Court today.


About Pastors for Texas Children:
Pastors for Texas Children works to provide “wrap-around” care and ministry to local schools, principals, teachers, staff and schoolchildren, and to advocate for children by supporting our free, public education system, to promote social justice for children, and to advance legislation that enriches Texas children, families, and communities.

Randi Weingarten is not only president of the AFT, she is a lawyer. Below is her reaction to the Supreme Court ruling. She calls it a “seismic shock.” She sees the decision as one more step in the relentless rightwing effort to defund and privatize public schools. She thinks the decision set the stage for an even more radical decision, one that requires states to fund religious school tuition as some states (think Florida, Indiana, Ohio) currently do.

Randi is right, but I was actually relieved that the decision was not far worse. I was afraid that the current Supreme Court, with Trump’s addition of two super-religious justices (Gorsuch and Kavanaugh), would overturn all Blaine amendments and require states to pay religious school tuitions in full. But the decision was far narrower. It said that any state that has a program to fund private schools must admit religious schools to the same program. So Montana, which has a private scholarship program, must include religious schools on the same footing as other private schools. That means that the Espinoza family has won $150 per year for all their troubles.

People like Betsy DeVos and her American Federation for Children, Jeanne Allen and her Center for Education Reform must be terribly disappointed that the decision did not tear down Thomas Jefferson’s “wall of separation between state and church,” thus compelling states to pay full tuition for students at religious schools, regardless of their ideology, their quality, or their lack of certified teachers. That didn’t happen, thank God!

The public schools, the schools that nearly 90% of all American families choose, the schools that educated the overwhelming majority of the American people, have survived a close call. If Biden wins in November and Ruth Bader Ginsburg remains healthy until Biden’s inauguration, we will in time have a Supreme Court that supports public schools.

Randi warns:

WASHINGTON—American Federation of Teachers President Randi Weingarten issued the following statement after the U.S. Supreme Court issued a decision in Espinoza v. Montana Department of Revenue:

“This ruling in the Espinoza case is a seismic shock that threatens both public education and religious liberty. It is a radical departure from our Constitution, American history and our values. As Justice Sonia Sotomayor said in her dissent, this ruling is ‘perverse.’

“Never in more than two centuries of American history has the free exercise clause of the First Amendment been wielded as a weapon to defund and dismantle public education. It will hurt both the 90 percent of students who attend neighborhood public schools, by siphoning off needed funds, and, in the long term, those who attend religious schools by curtailing their freedom with the accountability that comes with tax dollars.

“The court’s narrow conservative majority joined with Donald Trump, Betsy DeVos, and other wealthy donors and special interests to attack public education and turn the First Amendment on its head. What’s even more disturbing is that some justices wanted to go even further.

“While the court didn’t invalidate the 38 state constitutional provisions that preclude public money from going to religious schools, it came very close. The financial backers of this case will now use it to open the floodgates to litigation across the country.

“I hope the court and the plaintiffs understand that by enabling this encroachment on religious liberty, they are also opening up religion to state control and state interference. With public funding comes public accountability. Upending the carefully constructed balance of free exercise and separation of church and state not only undermines public education, it is a grave threat to religious institutions and organizations.

“In this time of national crisis, we have seen the importance of our public schools. Children across the country rely on public education for far more than just academics: Thirty million kids eat lunch in school, 12 million eat breakfast in school, and schools provide millions more with their healthcare. We should be prioritizing additional resources for public education and other vital social programs, not diverting them to private purposes.

“We are not going to give up. In fact, we are only going to fight harder. Parents, teachers and their unions stood up and fought back—and we will continue to do so each and every day, whether in court, in Congress, in state legislatures or at the ballot box.

“When it comes to Donald Trump and Betsy DeVos’ attacks on public education, we will see them in November.”

The advocacy group called Public Funds a Public Schools gathered a useful archive of research studies of vouchers.

The studies were conducted by nonpartisan academic and federal researchers.

The findings are broadly congruent.

Voucher schools are academically inferior to public schools.

Voucher schools divert funding from public schools, which enroll most children.

Voucher programs lack accountability.

The absence of oversight promotes fraud and corruption.

Voucher programs do not help students with disabilities.

Voucher schools are allowed to discriminate against certain groups of students and families.

Voucher programs exacerbate segregation.

Voucher programs don’t work, don’t improve education, and have multiple negative effects.

Jane R. Wettach of Duke Law School has written a study of North Carolina’s voucher program. It is expensive, having cost the state thus far nearly $160 million. It diverts money from the public schools. Most of the voucher schools are religious schools. Voucher schools do not participate in the state’s accountability program so the academic progress—or lack thereof—cannot be assessed.

Some of the author’s conclusions:

The overarching assessment of the initial review of the voucher program from our previous report remains true: The North Carolina voucher program is well designed to promote parental choice, especially for parents who prefer religious education for their children. It is poorly designed, however, to promote better academic outcomes for children and is unlikely to do so over time.

 The public has no information on whether the students with vouchers have made academic progress or have fallen behind. No data about the academic achievement of voucher students are available to the public, not even the data that are identified as a public record in the law. The State Education Assistance Authority (SEAA), which administers the program, concluded that the reporting of tests scores in aggregated form, as required by the legislature, produces no meaningful information. Therefore, the SEAA has discontinued requiring schools to produce the data and it no longer publishes any reports on test scores.

 The number of children receiving vouchers has increased ten-fold since it began: from approximately 1,200 in the first year to 12,300 in 2019-20. Although the program has attracted additional students each year, the rate of growth has been less than the General Assembly anticipated and not all of the appropriation has been spent.

The program is designed to 3xpsnd but it seems likely that most of the available slots will not be used.

92% of vouchers are used in religious schools.

This is a program designed to have no accountability for results of any kind:

Other potential accountability measures for North Carolina private schools receiving vouchers do not exist. Unlike private schools in most states with similar voucher programs, North Carolina private schools accepting voucher money need not be accredited, adhere to state curricular or graduation standards, employ licensed teachers, or administer state End-of-Grade tests.

The program is nothing more than a pass-through of public money to parents who want their children to have a religious schooling, without regard to quality.

The amount of the voucher is small, about $4,200, not enough for a high-quality education, but just right for an inferior religious school without certified teachers. This is what the NC General Assembly wants.

Parent advocates in Dallas are concerned about the fiscal impact of new charter schools at a time when the budget of the public schools are stretched thin.

Lori Kirkpatrick wrote here about the dangers of introducing new and unwanted charters.

Public education advocates don’t understand how it makes sense to introduce new charters when existing public schools are in fiscal trouble.

They expressed concern that all available state funds should be focused on helping existing district and charter schools meet the challenges of COVID-19, not on opening new charter schools. Public funds for education should be targeted where they are needed the most.

Trustee Joyce Foreman stated, “DISD is experiencing unbudgeted and unanticipated costs to ensure that DISD students have equal access to technology for virtual learning, and meals for continued health and wellness. This is not the time for reduced resources to our public school district that serves the vast majority of students who also have the greatest needs.”

Advocates also raised specific issues about the proposed new campuses including:

Waxahachie Faith Family Academy (FFA) – an alternative education accountability campus (AEA) with significantly lower accountability standards than most Dallas ISD schools and the district. For example, 4th graders at FFA scored significantly lower that 4th grade students at a Dallas Elementary school that is only 2.2 miles (4 minutes) from the FFA campus but has similar student demographics:

– 27% on state tests for reading (23 points lower) and 26% for math (32 points lower) than the Dallas ISD elementary school.

Uplift Education Wisdom Prep – the proposed Uplift campuses would result in an estimated revenue loss of up to $100 million to Dallas ISD over 10 years, using projected estimates of full enrollment.

Both proposed charter campuses are located in close proximity to academically acceptable Dallas ISD schools. The new FFA site at 200 W. Wheatland Road is located only 2.1 miles (5 minutes) from DISD’s academically acceptable David W. Carter High School (C rated). The expansion of Uplift Wisdom Prep at 301 W. Camp Wisdom Road is located 1.4 miles (< 5 minutes) from B rated DISD campus Umphrey Lee Elementary School, 0.4 miles (1 minute) from DISD’s Terry Elementary School (C rated), and 2.7 miles from DISD’s David W. Carter High School. Wisdom Prep is C rated and was Improvement Required the prior year under the name Pinnacle.

These new campuses are proposed through the charter amendment process which allows an existing charter to open a new campus anywhere in Texas once they meet certain TEA requirements. The approval is at the sole discretion of the TEA Commissioner of Education. There is no public notice about the amendment requests to open new campuses, and little opportunity for public input. Most parents and community members are unaware that these charters are proposed to open new campuses in their neighborhoods.

Foreman stated, “This lack of public notice and input in the charter expansion process goes against our need for more not less transparency in how decisions are made about the use of public funds. Parents spoke out against the FFA expansion in 2018 – and they are still against any such expansions.”

Lori Kirkpatrick issued the following alert for parent advocates for public schools in Dallas:



Waxahachie Faith Family Academy (FFA) has asked the Texas Education Agency (TEA) for approval to open a new charter campus in Dallas at 200 W. Wheatland Road to serve grades 9 – 12. FFA currently operates charter campuses in Dallas (Oak Cliff) and Ellis counties.

Please send an email to Mike Morath, Commissioner of Education, if you are concerned about the expansion of Faith Family Academy in Dallas. If possible, please post this information on social media to inform other parents and community members. The TEA decision had not been made as of May 5, 2020, but it is expected soon, so please act now.(

Here are critical concerns about Waxahachie Faith Family Academy:

• All available state funds should be used to help existing public schools respond to the on-going challenges of COVID-19. Districts are facing unbudgeted and unanticipated expenses needed to support students and their families. In this dire budget situation, we should focus state funds where they are needed most.

• The proposed Waxahachie FFA campus will be located in close proximity to a Dallas ISD High School rated academically acceptable. The new FFA site at 200 W. Wheatland Road is located only 2.1 miles (5-minute drive) from DISD’s David W. Carter High School which is rated academically acceptable for the last three years.

• Waxahachie FFA does not inform parents on its website that it is evaluated under alternative education accountability (AEA) provisions. Campuses and districts registered under AEA provisions meet significantly lower accountability standards than most Dallas ISD schools and the district. Yet FFA does not include this critical information on its website to fully inform parents about FFA’s accountability standards. In fact, FFA states that: “Faith Family Academy is an A-rated district by the Texas Education Agency – higher than every public school district in our service area!”

• Waxahachie Faith Family Academy does not budget to adequately meet critical needs of its students. FFA spends zero dollars on guidance and counseling services, compared to a per student expenditure of $436 by Dallas ISD for counseling. Students in grades 9 – 12 especially require counseling services to help them with class schedules, academic advising, and college access.

• Waxahachie Faith Family Academy spends less on instruction and more on administration. FFA is an alternative education accountability school with lower accountability standards than most Dallas ISD schools and serves students at risk of dropping out. Yet, it spends $563 less per student on instruction than Dallas ISD schools, and more than double per student on general administration expenses.

• Waxahachie underserves students with special needs, enrolling only 5.7 percent compared to the state average of 9.6 percent. It’s a serious concern that a charter school should be allowed to expand unless it serves close to the state average of students with special needs. In addition, Waxahachie’s 2019 Special Education Determination Status is “Needs Intervention” which raises additional concerns about the services it delivers to this student population.