SCOTUS decision on scholarships to religious schools not applicable to WA

The U.S. Supreme Court decided that state scholarship programs can send that aid to religious schools, if that’s what the parents choose. This case involves a Montana law that allows taxpayers to take a tax credit for up to $150 for donations they make to private education scholarships, former attorney general Rob McKenna explained.

“For a long, long time in Montana, those scholarships have not been allowed for students attending religious schools, in particular Catholic schools,” he said. “And there’s quite a bit of evidence that the prohibition on making these scholarships available to students attending religious schools is really based on anti-Catholic prejudice, which is a point cited by a couple of the Supreme Court justices.”

The majority opinion, written by Chief Justice Roberts, held that if Montana is going to allow state tax credits for private schooling, they must include religious schools. Otherwise, McKenna said, it’s religious discrimination.

This could, as Dave Ross pointed out, open the door to a full subsidy for states that decide they want to issue education vouchers, for example, as they would be free to give those vouchers to religious schools.

“Yes, if they were providing vouchers to attend private schools,” McKenna added. “So the point here is that if you’re going to open the door to taxpayer money being used to provide scholarships or subsidies for private education, you cannot exclude religious schools from that program.”

“There are other states that have comparable laws to Montana’s, that now we’ll have to take another look at those laws to see if they could be maintained or not,” he added.

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In Washington state, public money can go to charter schools, but charter schools are part of the public education system as defined by state law.

“But as far as I know, we don’t allow direct subsidies of private education in this state unless it’s something … technical, like allowing some private school students to ride on school buses, for example,” McKenna said. “We’re quite strict in this state in terms of trying to keep public money in public schools and not let it go to private schools.”

The religious aspect of the decision then is not an issue in Washington since private school subsides are not allowed. The decision does, however, clear a path for other states.

“It does clear a path for equal treatment of schools that are part of religious organizations,” McKenna said. “It’s part of a trend in the court dating back to at least 2014 of the court emphasizing protection from religious discrimination.”

If you pass a law of general applicability that applies to churches and also applies to every other kind of organization, such as a fire code, that’s fine, McKenna explained.

“Where you’d walk up to the line is where a particular law seems to be aimed at a religious exercise or at a church,” he said. “And the history of the Montana State tax credit is that dating back to the 1870s, it excluded the use of this scholarship money for religious schools because of anti-Catholic bigotry. That’s the kind of evidence the court will look for.”

Everybody gets a free education, that’s one of our values as a country, Dave said. But why not, instead of the state paying for it, you give parents the equivalent and let them choose which school, public or private, secular or religious? The court seems to be signaling that a system like that could, in fact, be constitutional, he added, and would not be considered a state endorsement of religion.

“That’s right,” McKenna agreed. “So the attorneys for the parents in the Montana case have made that very point. They said that this upending, and I’m quoting now, ‘will pave the way for more states to pass school choice programs that allow parents to choose a school that best meets their child’s individual needs, regardless of whether those schools are religious or non religious.'”

“That’s exactly what the opponents in this case were very concerned about,” he added. “The president of the Montana Federation of Public Employees, which includes their teachers and school workers as union members, really attacked this decision and said it was a slap in the face to its members in the communities they serve.”

The ongoing battle is in regards to if public money can ever go to private schools.

“What this opinion has decided is if you’re going to send money to private schools, you can’t exclude religious schools,” McKenna said. “There are at least two states that have existing private education programs, in other words, states where public money already goes to private education that block any of that money going to religious schools. Those states are Maine and Vermont. And they’re, I think, going to have to probably allow those religious schools to participate in their publicly subsidized private education programs going forward.”

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