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Deep Dive on School Choice

“The Free Exercise Clause protects against even “indirect coercion,” and a State “punishe[s] the free exercise of religion” by disqualifying the religious from government aid as Montana did here.”

Yesterday the United States Supreme Court ruled in favor of three families who sued the state of Montana over a student tuition assistance program that they said infringed on their religious freedom rights guaranteed by the US Constitution. But far from a narrow decision regarding religious freedom, this decision will have long-standing impacts not only on the Free Exercise (of Religion) and Establishment Clauses of the First Amendment, but may also have a large scale impact on the public and private education systems across the country.


Montana is one of 30 states in the country with “no aid” language in their state constitution. No-aid provisions specifically prohibit state funding to a school controlled by a church, sect, or denomination. The case itself centers around a tuition assistance program implemented by the Montana Legislature for parents who send their children to private schools. The program operated as such:

  • Charitable organizations apply to participate as a “student scholarship organization” under the program,

  • Once the organization is approved, any person in Montana who gives to that charity receives a tax credit of $150,

  • And the charity then turns around and awards scholarships to the private school of a participating student’s choice - any “qualified education provider”.

  • The charity must maintain an application process for the students who seek scholarships, comply with state reporting and monitoring requirements, and must use at least 90% of the donations on scholarships.

In this case, the Montana Legislature also required that the program adhere to the “no-aid” provision of the Montana Constitution. Shortly after setting up the program, the Department of Revenue in Montana issued “Rule 1” over the objection of the Attorney General which stated that families were prohibited from using the scholarships funds at religious school (the intent of which apparently was to conform the program to the no-aid provision).

The lawsuit was brought by three Montana families whose children attend Stillwater Christian School, claiming that Rule 1 conflicted with the statutory language that created the scholarship program and that the Rule discriminated on the basis of their religious views and the religious nature of the school they had chosen for their kids.

As the case made its way through the Montana courts, the Montana Supreme Court held that the no-aid provision required the court to invalidate the entire scholarship program because the program provided no mechanism to prevent scholarship aid going to religious schools and thus there was no way to reconcile the program with the no-aid provision. The entire scholarship program was scrapped and shut down.

On further appeal, the US Supreme Court ruled that the no-aid provision in the Montana Constitution is unconstitutional under the First Amendment.

“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.”

Majority Opinion Arguments

Chief Justice Roberts wrote the majority opinion. This is important because of nothing more than historical context at the moment: the last three opinions of the Supreme Court (DACA, LGBTQ worker rights, Louisiana abortion law) have seen the Chief Justice siding with the four liberal justices on the court. This shocked basically everyone, as Roberts was expected to be a conservative stalwart. Here, however, Roberts broke with the liberal justices AND wrote the opinion himself, almost as a pointed rebuke of newly formed expectations.

“We have repeatedly held that the Establishment Clause is not offended when religious observers and organizations benefit from neutral government programs.”

Much of this case came down to the difference between religious status-based discrimination and religious use-based discrimination. Taking the Trinity Lutheran and Locke cases as an example, the court split decisions on the two, upholding one while striking down the other. The difference being that Missouri in Trinity Lutheran discriminated against a church-owned preschool simply because it was church-owned (status-based discrimination), vs. in Locke where the state discriminated against the use of government-provided scholarship funds by a person to pursue theological education.

“Status-based discrimination remains status based even if one of its goals or effects is preventing religious organizations from putting aid to religious uses.”

It may seem like a narrow and potentially meaningless distinction, but it is nonetheless an important one to the court. In the Montana case here, the court states that “Montana’s Constitution does not zero in on any particular “essentially religious” course of instruction at a religious school...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.”

School Choice Texas Legislative History and Potential Implications

The issue of private school vouchers, including parochial institutions — shifting public education dollars to private school tuition — once a priority of conservative state lawmakers from suburban districts, seemed destined for the back burner during the upcoming legislative session in January 2021. However, Members who oppose school choice may have to face it now as a result of the latest Supreme Court ruling.

School choice has emerged as one of the most divisive education issues and one that critics have said is a private school voucher system that would divert much-needed dollars from public schools. Proponents call the idea “school choice” because it would give some students the option to leave poorly rated neighborhood public schools for private ones.

The insertion of vouchers in the realm of policy debate is not new to the Texas Legislature. Lt. Gov. Dan Patrick, a former Senate Education Committee chairman, has championed private school choice legislation since his first session as a state senator in 2007.

Attempts in each session to try and pass some aspect of vouchers have loomed for years. However, in Texas’ most recent legislative session (86th), the Texas House of Representatives, backed by House Speaker Dennis Bonnen (R-Angelton), ensured private school vouchers were off the docket, at least in the Texas House. A tone and rhetoric very much dialed back by conservatives and school choice catalysts from positions in debate in the preceding sessions.

Chairman Larry Taylor (R-Friendswood), chairman of the Senate Education Committee, authored and carried SB3 during the 85th Legislature. SB3 introduced the idea of education savings accounts and tax-credit scholarships to subsidize private and parochial school tuition and other education expenses. The two-part plan would allow for Texas taxpayers dollars to help parents send their children to private or religious schools. It specifically outlined education savings accounts (ESAs) in the measure, which would have allowed Texas parents public money to spend on private K-12 tuition and education-related expenses, including tutoring, technology, textbooks, and special education services. The latter half of the measure attempted to reintroduce another controversial subject surrounding the debate: tax credit scholarships. The program was intended to allow businesses to count contributions to approved scholarship organizations as a credit against their insurance premium tax and while it passed the Senate in the 84th legislature, it again died in the House.

Proponents of the measure believe the reform is needed to ensure a stable, sustainable, and educated workforce if the State is to remain economically sound and students afforded more opportunities. Further, low-income families who have a higher need would be able to bundle the opportunity to offset private school tuition and transportation costs. Opponents of the bill are more skeptical about it, and feel the policy measures like ESAs would divert public money to private schools, with no accountability (private schools are not held to the same accountability standards as public schools), and continue to widen the gap that already exists within school funding inequities.

Similarly, in the late stages of the 85th, the Texas Senate tried to insert a $1.6B amendment into the public education system that included voucher language within the House's school finance reform measure, HB21 by House Public Education Chair, Rep. Dan Huberty (R-Kingswood). The bill advanced to the Senate floor as it was championed by conservatives, including the Governor and Lt. Governor at the time.

The Senate version of the bill would have created a school choice program called an education savings account for special education students. Under the savings account system, $8,300 of per-student funding the school district receives would be diverted to an account that a special education student leaving public school could use on private school tuition or other non-public education expenses.

Facing resistance in the House, Senate leaders refused to approve an overhaul of the school finance system (HB 21 by Huberty) without those subsidies — forcing a stalemate. Governor Abbott demanded lawmakers pass both in a summer special session. Both failed to pass again, while HB 21 would go on to pass in conference committee, where conferees ultimately carved out the education savings account language, leaving the policy on the table for a future discussion.

Now we head into the 2021 legislative session with a number of competing issues already high of mind - COVID, economic recovery, criminal justice reform - but with this backdrop of school choice history already in the books and the recent Supreme Court ruling looming large, it is very likely that we will see some of these ideas resurface in what is to be a jam-packed schedule for the Texas Legislature.

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