By Tim Walker
Today the United States Supreme Court allied itself with the far-right school privatization agenda by sanctioning the use of public funds for private school tuition. In a 5-4 decision, the Court ruled in Espinoza v. Montana Department of Revenue that a provision in the Montana Constitution designed to prevent public money from flowing to private religious schools could not be used to strike down a private school voucher program.
Montana is one of 37 states with what are known as “No Aid” constitutional provisions. Montana’s dates back to 1889, but was amended and reaffirmed in 1972 to ensure “unequivocal support” for the state’s public education system
In 2018, the Montana Supreme Court ruled that a school voucher program passed by the legislature in 2015 violated this clause because it was intended to send money to private religious schools. The Court struck down the entire program. Arguing that the decision violated participating families’ free exercise of religion, the pro-voucher group handling the case appealed to the U.S. Supreme Court, which agreed to hear the case.
The National Education Association, along with its affiliate the Montana Federation of Public Employees and others, filed an amicus brief supporting the state’s position, arguing that the plaintiffs lacked standing to bring the suit and that the framers of the Free Exercise Clause never intended for it to be used to prohibit states from deciding not to fund religious education. “The court should not transform the federal free exercise clause into a mandate for state funding of religious schools,” NEA General Counsel Alice O’Brien wrote on SCOTUSblog last September.
By ruling for the plaintiffs, however, the Court today appeared to do just that, in the process clearing a legal path for the expansion of school voucher programs across the country.
“At a time when public schools nationwide already are grappling with protecting and providing for students despite a pandemic and mounting budget shortfalls, the court has made things even worse opening the door for further attacks on state decisions not to fund religious schools,” said NEA President Lily Eskelsen García. “The detrimental impact this decision will have on students throughout this country is shameful and unacceptable.”
Complicit in an Extreme Agenda
School voucher schemes already drain hundreds of millions of dollars away from public school students to pay the private school tuition of a select few, while producing abysmal results for students. In study after study—in Louisiana, Indiana, Ohio, Washington, D.C., and beyond—researchers have found that voucher students perform significantly worse than their peers in public schools in both reading and math. Voters have also been consistently opposed to these programs, and they have been voted down every time they have appeared on the ballot.
But powerful privatization advocates continue to drive the adoption and expansion of vouchers.
Betsy DeVos, backed by the deep pockets of her family foundation and other partners in the right-wing network that pushes school privatization, has championed school vouchers for decades, starting with her home state of Michigan. It wasn’t until she became U.S. Education Secretary in 2017, however, that she had the levers of the federal government at her disposable to expand vouchers on a national scale. But even with GOP majorities in the House and Senate and the strong backing of President Trump, Congress in 2017 and 2018 rejected DeVos’ efforts to create a federal voucher program.
In 2019, DeVos tried again with “Education Freedom Scholarships,” a school voucher program dressed up as tax credits. Under the plan, individuals and companies would earn tax credits by donating money to nonprofit scholarship funds. Students then can use the funds to attend private schools, including religious schools. Tax credit programs are school vouchers via money laundering: they still transfer taxpayer money to private schools, but in a less direct way.
DeVos’s federal proposal went nowhere in Congress, but a number of states, including Montana, already had their own tax credit voucher programs in place.
The tax credit voucher program passed by the Montana legislature in 2015 ran afoul of the state constitution, which prohibits state entities from making “any direct or indirect appropriation or payment from any public fund or monies … for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”
Funded by a network of backers including the Koch Brothers and the DeVos Family Foundation, the Institute for Justice (IJ) has long have targeted No Aid provisions, which exist in 38 states. When the Montana Department of Revenue issued a rule stating that religious schools could not participate in the state’s new tax credit voucher program because it would violate the Montana No-Aid Clause, the IJ bankrolled a new case, Espinoza v. Montana Department of Revenue. When it lost the case before the Montana Supreme Court—which provides the final word on the meaning of the state constitution—IJ appealed to the U.S. Supreme Court, asking it to sweep away state constitutional provisions that stand in the way of its agenda to promote school vouchers.
Today the Court did just that. And in its radical decision reversing the Montana court’s ruling on Monday, the Court has opened the door to more private school voucher programs nationwide.
In the process, five justices have become complicit in Betsy DeVos’ extreme agenda to expand vouchers and undermine public education, said Eskelsen García. “DeVos’s myopic mission has nothing to do helping with students, but it has everything to do with privatizing public goods and services for private profit.”
Looking Ahead to November
The Court’s ruling in Espinoza will further embolden privatization advocates, who have are already seizing on the COVID-19 pandemic to promote vouchers and privatization at a time when states and public schools are already facing unprecedented funding shortfalls. In May, DeVos created a $180 million voucher program for private and religious schools, using federal CARES Act funds. Se is also trying to redirect hundreds of millions in CARES funds intended for low-income students to private school students regardless of income.
In a recent radio interview, DeVos was asked if her agenda was about “utilizing this particular crisis” to boost private schools. Her response: “Absolutely.”
As the 2020 election draws closer, Eskelsen Garcia said, DeVos’s determination to undermine public education will be checked by educators’ enthusiasm for putting an end to her destructive tenure at the Department of Education.
“Rest assured, educators will put that same level of energy into firing DeVos and electing a new president in November because it’s the best thing we can do for our students and for the future of this country.”