Why The Supreme Court Needs To Let Families Use Tax Dollars For Private Schools

This term, the Supreme Court has the opportunity to bury anti-Catholic laws now used to discriminate against all religions, and secure a brighter future for kids like Raelyn Sukhbir.

Originally published on thefederalist.com
By Andrea Picotti-Bayer

Brittany Sukhbir’s little girl Raelyn cried after every day at school. Raelyn attended second grade at the local public school in Livingston, Montana, and a classmate was bullying her unmercifully.

Brittany and her husband, Kyle, a retired army veteran injured while serving in Afghanistan, met with teachers and administrators, but nothing changed. “Life at home,” Brittany recalls, “was kinda like walking on eggshells.”

That was before St. Mary’s. This Catholic grade school had a good reputation in Livingston and a “zero tolerance policy” about bullying. The Sukhbirs did not think that they could afford private school, but the daily bullying simply became too much for Raelyn to bear.

They contacted St. Mary’s prior to the Christmas break. They visited the school and arranged for Raelyn to spend the morning as a visitor when classes resumed. Brittany was impressed: “Every single teacher knew her name and every student was excited to meet Raelyn and play with her.”

That was two years ago. Since Raelyn started attending St. Mary’s, the Sukhbirs have noticed an incredible transformation in their daughter. She is no longer shy and reserved. In fact, she’s outgoing. She participates in sports and other activities.

Changing schools has benefited the entire Sukhbir family, too. “Now that Raelyn is no longer crying when she comes home from school,” says her mom, “we can really enjoy being together.”

A New Possibility for Every Child

The Montana legislature passed a tax-credit scholarship program in 2016 designed to help families like the Sukhbirs afford the right school for their children, but a nasty vestige of our nation’s anti-Catholic past scuttled the state’s “school choice” program. This term, the U.S. Supreme Court has the opportunity in Espinoza v. Montana Department of Revenue to finally bury those vestiges of our anti-Catholic past now used to discriminate against all religions, and secure a brighter future for kids like Raelyn Sukhbir.

Montana’s “Tax Credit for Qualified Education Contributions” law provided a dollar-for-dollar tax credit of up to $150 for donations to independent scholarship organizations. Under this law, taxpayers donating to these scholarship organizations could not direct contributions to a specific parent or private school. Instead, the organizations receiving the donations would administer an application process and pay the scholarship directly to the recipient’s private school.

When Montana’s Department of Revenue wrote rules to implement the new law, it decided no “religiously-affiliated private schools” could receive scholarship monies. The agency insisted its rule was needed to comply with a provision in the Montana constitution known as a state Blaine Amendment. This provision prohibits the use of public funds 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.”

Kendra Espinoza and two other Montana moms with children attending private Christian schools filed suit in state court claiming, among other things, the Department of Revenue’s rule violated the free exercise and equal protection guarantees of the U.S. Constitution. Their case found its way to the Montana Supreme Court, which surprisingly invalidated the private school tax credit program in its entirety. The law “aids sectarian schools,” said the majority, and violates Montana’s constitution “in all of its applications.”

The U.S. Supreme Court granted Ms. Espinoza’s petition for review of the Montana Supreme Court decision in late June and oral argument will be heard later in the term. The high court will consider whether states’ Blaine amendments violate the U.S. Constitution’s religion and equal protection clauses. Raelyn’s mom, Brittany, is among several Montana parents sharing their positive experiences with Catholic schools in an amicus brief filed on their behalf by the Catholic Association Foundation.

Let Us Tell Your Kids What to Think, Or Else

Catholic education in the United States stretches as far back as the early 1600s, when Franciscan missionaries from Spain founded the first Catholic school in St. Augustine, Florida. The 19th century saw the creation of a system of parochial schools in Catholic parishes across the United States. These schools were founded to meet the needs of a growing Catholic immigrant population at a time U.S. public schools were overwhelmingly and explicitly Protestant.

At this same time, many non-Catholics in America had profound anxieties about the growing number and political power of Catholic immigrants. They were concerned about the increasing voting power Catholics and even the danger of papal tyranny. “Nativists” and theological liberals opposed Catholics accessing public funding for private Catholic schools. Thomas Nast’s infamous cartoon, published in Harper’s Weekly in 1871 and 1875, reflects the widespread anti-Catholic bigotry prevalent at the time.

Just prior to the Civil war, several states passed laws forbidding the diversion of public funds to religious or “sectarian” schools. “Sectarian” in this context, as recognized by the Supreme Court, was a synonym or code word for “Catholic.”

In 1875, President Ulysses S. Grant proposed, and House Speaker James G. Blaine introduced, an amendment to the U.S. Constitution that would have codified this prohibition at the federal level. The original amendment Blaine presented effectively rewrote a portion of the First Amendment:

No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any States for the support of public schools, or derived from any public fund therefor, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations.

This proposal, known as the “Blaine Amendment,” passed the House of Representatives but failed in the Senate to garner the two-thirds majority required to propose a constitutional amendment.

Bigotry Lays the Ground for More Bigotry

In the aftermath of the failed attempt at the federal level, Congress required territories entering the union to adopt “Little Blaines” or “State Blaine amendments.” The 1889 Enabling Act admitting into the union several western states, including Montana, required those states’ constitutional conventions to establish and maintain a system of public schools “free from sectarian control.”

Judge Kyle Duncan of the U.S. Court of Appeals for the Fifth Circuit observed that “[b]y 1890, twenty-nine states in all had incorporated into their constitutions explicit prohibitions against the allocation of public funds to sectarian schools and other institutions.”

The anti-Catholic bigotry that accompanied the passing of state Blaine amendments like Montana’s clearly shows unconstitutional animus against one particular religion, and anti-Catholic sentiment entrenched in the Blaines has since morphed into a generalized anti-religious bias in favor of “secular” education. To paraphrase Martin Niemoller’s famous “First They Came For” quotation, first they came for the Catholic schools and we said nothing, then they came for the Protestant and all religious schools…

Bigotry Is Only Part of These Laws’ Problems

The Supreme Court should carefully consider whether the state Blaine amendments’ shameful origin undermines their constitutionality, but the Blaines have constitutional problems well beyond the fact that they were born in bigotry. The “anti-religion” operation of state Blaine amendments is also at odds with the First Amendment’s protection of the free exercise of religion.

‘The exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution.’

In one of the most important free exercise cases in recent years, Church of the Lukumi Babalu Aye, Inc. v. City of Hialeah, the Supreme Court explained that free exercise standards are violated when a law “discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons.” Said another way, attaching civil disabilities to lawful behavior, status, or association because they are motivated by religious impulse is simply impermissible.

Just two terms ago, in Trinity Lutheran Church of Columbia, Inc. v. Comer, the Supreme Court applied Lukumi to a case involving Missouri’s state Blaine Amendment. The state, pointing to its constitution, banned a church-run preschool from receiving a grant from the state’s scrap tire recycling grant program to resurface its outdoor playground.

The Supreme Court held that Missouri violated the free exercise protections of the First Amendment. Chief Justice Roberts, writing for the majority, stated that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”

In his concurring opinion in Trinity Lutheran, Justice Neil Gorsuch asserted that “the general principles here do not permit discrimination against religious exercise – whether on the playground or anywhere else.” Despite efforts by the education establishment to limit Trinity Lutheran’s reach, Gorsuch is spot-on: there is no principled basis to treat government-sponsored scholarship or student aid programs any different than government grants in fundamental fairness under the law. Parents, the primary educators of their children, should not be excluded from state-sponsored tuition assistance when they chose to send their kids to religious schools.

Make Happiness Possible For More Kids Like Raelyn

The Sukhbirs both work, Kyle at a North Dakota oil field two weeks out of the month and Brittany as an office manager at a local physical therapy clinic. Their combined salaries are not enough to fully cover tuition at St. Mary’s for Raelyn (now 8) and her five-year-old brother Wyatt. Fortunately, St. Mary’s offered the Sukhbirs tuition assistance so both children can attend. “I thought that St. Mary’s was only for rich kids,” says Brittany. “But I now know that that is 100  percent not the case.”

Brittany thinks access to additional scholarships would give more Montana families the option of sending their child to St. Mary’s, and other schools that might be the right fit for their children. “My kid would not be the kid she is today if we did not have the scholarship supports to send her to St. Mary’s,” says Brittany. “She has really flourished into an amazing child.”

The Espinoza case can put state Blaine amendments to rest once and for all and open up more options beyond public schools for kids like Raelyn. Barring religious schools and parents choosing these schools from accessing state-sponsored student aid is, as Chief Justice Roberts said in Trinity Lutheran, “odious to our Constitution all the same, and cannot stand.”

Andrea Picciotti-Bayer is legal advisor for The Catholic Association Foundation.