WASHINGTON (AP) — States can’t cut religious schools out of programs that send public money to private education, a divided U.S. Supreme Court ruled Tuesday.
By a 5-4 vote with the conservatives in the majority, the justices upheld a Montana scholarship program that allows state tax credits for private schooling in which almost all the recipients attend religious schools.
Kim Schroll, a North Platte Catholic Schools board member, said she hopes the ruling will help clear the way for Catholic and other parochial schools to win approval of a similar program in Nebraska.
“Every family should have the opportunity to choose where they would like their children to receive their education,” Schroll said.
“And if financially they’re unable to choose a Catholic education in this example ... hopefully additional funding opportunities would allow every family to have that freedom to choose.”
The Montana Supreme Court had struck down the K-12 private education scholarship program created by that state’s Legislature in 2015 to make donors eligible for up to $150 in state tax credits.
The state court had ruled that the tax credit violated the Montana constitution’s ban on state aid to religious schools.
That ban resembles those still in effect in the constitutions of 37 other states, including Nebraska.
They’re collectively known as “Blaine amendments” for James G. Blaine, a Maine Republican congressman and 1884 GOP presidential nominee, who failed in 1875 to write the ban into the U.S. Constitution.
Chief Justice John Roberts wrote the opinion that said the Montana high court’s ruling itself ran afoul of the religious freedom, embodied in the Constitution, of parents who want the scholarships to help pay for their children’s private education.
“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,” Roberts wrote.
In a dissent, Justice Sonia Sotomayor described the ruling as “perverse.”
“Without any need or power to do so, the Court appears to require a state to reinstate a tax-credit program that the Constitution did not demand in the first place,” she said.
Montana parents whose children attend religious schools sued to preserve the program.
The high court decision upholds families’ rights “to exercise our religion as we see fit,” said Kendra Espinoza, the lead plaintiff in the lawsuit, whose two daughters attend the Stillwater Christian School in Kalispell, Montana, near Glacier National Park.
Courts in some states have relied on Blaine amendments in their constitutions to strike down religious-school funding. Two states with existing private education programs, Maine and Vermont, could see quick efforts to force them to allow religious schools to participate.
In a separate concurring opinion, Justice Samuel Alito pointed to evidence of anti-Catholic bigotry that he said motivated the original adoption of the Blaine amendments.
Justice Brett Kavanaugh, whose two daughters attend Catholic schools, made a similar point during arguments in January when he talked about the “grotesque religious bigotry” against Catholics that underlay those amendments.
A state tax-credit program similar to Montana’s has been proposed in the Nebraska Legislature, though chances for passage are cloudy when lawmakers resume their 2020 session July 20.
Legislative Bill 1202, introduced by state Sen. Lou Ann Linehan of Omaha, would authorize matching tax credits for donors to nonprofits providing private-school scholarships for qualified needy students.
Linehan, who promoted the concept last July in North Platte, made LB 1202 her 2020 priority bill. But it hadn’t advanced from the Revenue Committee, which she chairs, when Speaker Jim Scheer of Norfolk suspended the 60-day session in March due to the COVID-19 pandemic.
Senators will have 17 legislative days left when they reconvene next month. State budget adjustments and debates about property tax relief and business tax incentives are expected to eat up much of their time.
Schroll, who testified in favor of LB 1202 at a Feb. 19 public hearing, said tuition at North Platte Catholic Schools is nearly one-fourth the cost at some nearby small public schools that accept “option students” from North Platte.
“That typically happens because, first and foremost, our teachers make a lot of sacrifices so they have the opportunity to teach in the Catholic environment,” Schroll said Tuesday.
“But also we have a number of volunteers that step up and contribute their time, and therefore our expenses are typically less than what the other schools have.”
Telegraph staff writers Job Vigil and Todd von Kampen contributed to this report.