Derek W. Black is a professor of constitutional law who specializes in civil rights issues at the University of South Carolina. His recent book Schoolhouse Burning: Public Education and the Assault on American Democracy is a must-read.

Black writes here in an essay written for this blog about recent voucher cases in state courts:

This summer in Espinoza v. Montana Department of Revenue, the US Supreme Court struck down the provision in the Montana state constitution that prohibited aid to religious schools as a violation of free exercise of religion.  Some public education advocates understandably feared the sky was falling. Voucher advocates hailed Espinoza as a “major win” and began strategizing how they might expand the decision and leverage it in other contexts.  Most notably, the plan they envisioned would use Espinoza to force states to allow religious institutions to operate charter schools.  If they achieved that, public education might not only be privatized, it might become religious.

Far less attention has been paid to the string of state constitutional victories striking down voucher programs and respecting states’ decision to limits on the use of public education funding.  These decisions reinforce the notion that Espinoza is a narrow decision and ought to stay that way.

The first state case was in Tennessee.  Lacking the votes for a statewide voucher package, the General Assembly adopted a program that made vouchers available in the state’s two largest locations—Memphis and Nashville—but nowhere else.  Students in those districts could take the  state and local per pupil expenditure that would have remained in the public schools and spend it at a private school.  

Plaintiffs alleged this program violated a number of constitutional provisions, including the equal protection clause and the state’s obligation to provide for public education.  Those two claims would have taken more factual development, but the trial court was able to easily and immediately strike down the voucher program on the state constitution’s “home rule” provision.  That provision does not allow the general assembly to target individual jurisdictions in this way against their consent.  The Tennessee Court of Appeal reached the same conclusion, affirming the lower courts’ decision to enjoin the program.

The second case in South Carolina involved Governor Henry McMasters’ decision to use federal emergency funds from the Coronavirus Aid, Relief, and Economic Security Act to create a private school tuition program.  While the South Carolina Constitution explicitly prohibits using public funds “for the direct benefit of any religious or other private educational institution,” the Governor contended that the bar did not apply because he received the money from the federal government.  In the alternative, he argued that students were the direct beneficiaries and private schools were only indirect beneficiaries.

The South Carolina Supreme Court rejected both arguments.  The funds became public within in the meaning of the state constitution when the governor take receipt of them and decided how to spend them.  And the fact the money moved directly from state government to the private schools resolved the second issue:  In short, “the  direct payment  of  the  funds  to  the  private  schools  is  contrary  to  the  framers’  intention not to grant public funds ‘outrightly’ to such institutions.”

The third case in Maine was the most complex.  Maine’s constitution obligates it to provide public education to all students in the state, but some of its school districts do not operate high schools.  In those districts, state law indicates the district may contract with either a nearby district that does operate a high school or an “approved” private school.  To be approved, the private school must be nonsectarian.  Plaintiffs claimed that this provision, like the rules in Espinoza, violated the First Amendment guarantee to free exercise of religion. 

The First Circuit Court of Appeals, however, found that this case was distinct from Espinoza.  Espinoza involved discrimination or animus against schools based on their “status” as religious schools.  But Maine’s aim was not to discriminate against religious groups.  Rather Maine’s aim was to prevent the “use” of public funds on religious ends.  The non-discriminatory purpose was all the more evident in light of the fact that the state had not created a voucher program generally open to all.  Rather, its program was designed to ensure that students in districts without a public high school still receive an education roughly equivalent to what they would have received had there been a public high school in the district.  More succinctly, the state contracted with private schools solely to replace the public education opportunity missing in the district.  In this context, the court found that the Free Exercise Clause does not force the state to accept religious instruction as a substitute for public education instruction.

A fourth case in now before the Michigan Supreme Court.  A Michigan statute diverted $2.5 million per year from Michigan’s public schools “to reimburse actual costs incurred by nonpublic schools in complying with a health, safety, or welfare requirement mandated by a law or administrative rule of this state.” MCL 388.1752b(1).  On its face, the statute is highly problematic because the Michigan Constitution provides that that “[n]o public monies or property shall be appropriated or paid . . . directly or indirectly to aid or maintain” any private school.  

The Michigan Court of Appeals, however, reasoned that reimbursements to private schools do not violate the Michigan Constitution because they are for auxiliary services, not educational services.  Plaintiffs’ counter that this argument is non-sensical.  The plain language of the Michigan Constitution prohibits public funding for private schools, regardless of how the state funnels or frames it.  The voters included this provision in the Michigan Constitution to ensure the general assembly did not take funds from public schools and redirect them elsewhere.

Regardless of what happens in Michigan, this developing line of cases suggests that state constitutions are more important to the future of private school voucher and tuition programs than Espinoza.  State provisions that limit diversion of public funds to private schools remain in full force.  The same is true of limits on the use of public funds for religious instruction as long as those limits are not motivated by religious animus.  This distinction is particularly important in stopping the rationale in Espinoza’s from spilling over into charter school programs.