Exclusion Of Religious Schools From State Scholarship Program Violates Federal Constitution : US Supreme Court

Viswajith Anand

1 July 2020 12:19 PM GMT

  • Exclusion Of Religious Schools From State Scholarship Program Violates Federal Constitution : US Supreme Court

    In a notable judgement yesterday in the case Espinoza v. Montana Department of Revenue ,the U.S Supreme Court reversed an earlier judgment of the Montana State Supreme Court and disregarded a "no-aid" provision promulgated by the Montana State department by finding that it is inconsistent with the Federal Constitution. The U.S.Supreme court ruled in the ratio of 5:4 in which chief...

    In a notable judgement yesterday in the case  Espinoza v. Montana Department of Revenue ,the U.S Supreme Court reversed an earlier judgment of the Montana State Supreme Court and disregarded a "no-aid" provision promulgated by the Montana State department by finding that it is inconsistent with the Federal Constitution.

    The U.S.Supreme court ruled in the ratio of 5:4 in which chief justice Robert delivered the opinion of the court joined by Thomas, Alito, Gorsuch, and Kavanaugh, JJ.,

    Ginsburg, J. Along with Kagan, J., and Sotomayor,J., were the judges who filed their dissenting opinions. Among the judges particularly, Breyer,J., filed a dissenting opinion, in which Kagan ,J., joined as to Part I of the judgment.

    The Suit before the US Supreme Court was brought by mothers of three children who attend a private christian school in Montana state. The reason rendered by the parents behind their selection of that particular school is that, "it teaches the same Christian values that [they] teach at home."  

    The decision of the US.Supreme Court is that the no aid provision of the Montana Constitution and the Rule 1 administrative rule viciously violate the free exercise clause of the Federal Constitution.

    The Free Exercise clause of the Federal Constitution preserves the religious rights against discrimination.  

    The US Supreme Court while deciding the matter had observed that the impunnged provision of the Montana Constitution is in very much against the principles laid under the federal constitution and so many judgments delivered by the Supreme Court.

    In Trinity Lutheran Church of Columbia Inc. v. Comer, 583 U.S, the U.S.Supreme Court had held that, disqualifying otherwise eligible recipients from a public benefit "solely because of their religious character" imposes a penalty on the free exercise of religion that triggers the most exacting scrutiny.

    The impugned "No-aid" provision designed by the state of Montana is a visible specimen of a document that clearly avoids religious schools from the domain of pubic benefits on the sole reason of religious status.


    The Montana Legislature under the intention "to provide parental and student choice in education" had promulgated a scholarship programme for students attending private schools in the year of 2015. The attributes of the programme is that, it grands a tax credit of upto 150 USD to any taxpayer who generously donates to a participating "Student Scholarship Organisation". The Scholarship organisation can utilise the fund generated through donations for the purpose of awarding scholarships to children fro tuition at private schools. The conditions for the Scholarship organisations are, among other requirements, it must maintain an application process for awarding the scholarships and justifiably it must exploit the 90% of all the donations received on awarding scholarship awards and equally it must comply with the state reporting and monitoring requirements.

    The family of the child ,who wins the scholarship under the program can use the fund at any "qualified education provider" including any private school that qualifies standard accreditation, testing and safety preconditions. Once the family decides the school of their choice, the scholarship organisation must send the fund to the concerned school and it cannot arbitrarily restrict the award to certain type of schools.

    The legislature of the Montana State had considered this initiative as an aspiring one and allowed a budget of 3 Million USD annually to fund the tax credits which begins in 2016.


    The "no aid" provision is part of Article X, Section 6 of the Montana Comsitituion that bars government aid to sectarian schools. And the provision states as :

    "Aid prohibited to sectarian schools….. The legislature , counties cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property 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."

    As per the Montana legislature it is mandatory that the Scholarship program must function in accordance with the "no aid" provision. Later the "Rule 1" provision promulgated by the Montana Department of Revenue also invited some criticism from all quarters . The rule 1 provision is an administrative rule act as an embargo for the families in utilising the scholarships at religious schools. The definition of "qualified education provider" had changed negatively and created a situation that rejects any school "owned or controlled in whole or part by any church, religious sect, or denomination" This was vehemently criticised by even the Attorney General of the Montana State. The objection raised by the Attorney General is that "this Administrative rule will prohibit families from using Scholarships at religious schools." In a letter to the Department of Revenue, Montana state he marked his disagreement and advised that, "the Montana Constitution did not require excluding religious schools from the pro- gram, and if it did, it would "very likely" violate the United States Constitution by discriminating against the schools and their students."


    The petitioners in the first instance, approached the trial court for adequate remedy and the trial court had urged for "Rule 1" and held that it was based on a mistake of law. The Court further explained that, "The rule was not required by the no-aid provision, because that provision prohibits only "appropriations " that supports religious schools, "not tax credits" ".

    Later in December, 2018 the Montana Supreme Court reversed the decision made by the trial court under the observation that no aid provision "broadly and strictly prohibits aid to sectarian schools." The decision of the Montana Supreme Court is quite perplexing and it went on to hold that the ceasing of the no-aid provision demands the annulling of the entire scholarship program.

    The court observed that, "the program provided "no mechanism" for preventing aid from flowing to religious schools, and therefore the scholarship program could not "under any circumstance" be construed as consistent with the no-aid provision. " So for the same reason, the tax credit is no longer convenient to maintain scholarships at either religious or secular private schools.

    On the aspect of pervasive use of power granted to the authority, the court is agreed with the petitioners and observed that the Department had exceeded its authority in propagating Rule 1 and explained that, " the statute creating the scholarship program had broadly defined qualifying schools to include all private schools, including religious ones, and the Department lacked authority to "transform" that definition with and administrative rule"


    The nature of the religious clauses which is part of the First Amendment is a championing provision in terms of free and indiscriminate way of religious practices. It provides that, "Congress shall make no law respecting an establishment, or prohibition the free exercise thereof." The extent of the Free Exercise Clause is not limited before any states of its laws. The Free Exercise Clause is applicable to states under Fourteen Amendment, which "Protects religious observers against unequal treatment" and against "laws that impose special disabilities"

    The Montana state's no aid provision had a serious problem with the above mentioned federal stand. The no aid policy bars religious schools for obtaining public benefits on the sole ground of religious character of the schools.


    The U.S.Supreme Court on a majority decision had observed that the "No aid" Clause of the Montana State is definitely discriminatory in nature and a "Strictest scrutiny" is required. The Court observed that, "Stringent standard" is not watered down but really means what it says, To satisfy it , government action "must advance interests of the highest order and must be narrowly tailored in pursuit of those interests."

    The Court observed , Furthermore, we do not see how the no-aid provision pro- motes religious freedom. As noted, this Court has repeatedly upheld government programs that spend taxpayer funds on equal aid to religious observers and organisations, particularly when the link between government and religion is attenuated by private choices. A school, concerned about government involvement with its religious activities, might reasonably decide for itself not to participate in a government program. But we doubt that the school's liberty is enhanced by eliminating any option to participate in the first place.


    The department of Revenue argued that the no aid provision is actually a facet that positively sponsors the federal Constitutional features like religious freedom.The line of argument was that , the religious freedom was unavailable due to an infringement of First Amendment rights can no way be justified by a State's alternative views that the infringement advances religious liberty. But this view was not accepted by the Court by observing that , "the infringement here broadly burdens not only religious schools but also the families whose children attend them. The Department suggests that the no-aid provision safeguards public education by ensuring that government support is not diverted to private schools, but that interest does not justify a no-aid provision that requires only religious private schools to bear its weight. "

    A major share of the arguments placed by the State Department were unconvincing before the Court, the Court had reflected its view in the following words:

    The Department's argument is especially unconvincing because the infringement of religious liberty here broadly affects both religious schools and adherents. Montana's no- aid provision imposes a categorical ban—"broadly and strictly" prohibiting "any type of aid" to religious schools. This prohibition is far more sweeping than the policy in Trinity Lutheran, which barred churches from one narrow program for play- ground resurfacing—causing "in all likelihood" only "a few extra scraped knees."

    And the prohibition before us today burdens not only religious schools but also the families whose children attend or hope to attend them. Drawing on "enduring American tradition," we have long recognised the rights of parents to direct "the religious upbringing" of their children. Wiscon- sin v. Yoder, 406 U. S. 205, 213–214, 232 (1972). Many parents exercise that right by sending their children to religious schools, a choice protected by the Constitution. See Pierce v. Society of Sisters, 268 U. S. 510, 534–535 (1925). But the no-aid provision penalises that decision by cutting families off from otherwise available benefits if they choose a religious private school rather than a secular one, and for no other reason.

    Another argument raised by the state departments is that the no aid provision will improve Montana's interest in public education. They reasoned their position by arguing that, the no aid provision safeguards the public school system by ensuring that government support is not diverted to private schools.


    On a separate concurring view Justice Thomas has initiated a detailed discussion on the aspect of Establishment Clause and how the existing status will hinder the free exercise rights. Justice Thomas is observing that the modern and the existing view of the Establishment Claude is erronous and need some serious revisit.

    It observes :

    "Under the modern, but erroneous, view of the Establishment Clause, the government must treat all religions equally and treat religion equally to non religion. As this Court state in its first case applying the Establishment clause to the states , the government cannot "Pass laws which aid one religion, aid all religions, or prefer one religion over another"

    The real understanding of the Establishment Clause gives a different perspective. In original, the Clause served only to "Protect states , and by extension their citizens, from the imposition of an established religion by the Federal Government" The modern interpretation of states role to exist totally separate from and silent on matters regarding religion to comply with the Establishment Clause is wrong.

    It was further observed :

    "Properly understood, the Establishment Clause does not prohibit States from favoring religion. They can legislate as they wish, subject only to the limitations in the State and Federal Constitutions. See Muñoz, The Original Meaning of the Establishment Clause and the Impossibility of Its Incorporation, 8 U. Pa. J. Const. L. 585, 632 (2006)."


    Ginsburg and Kagan,JJ., had observed through their separate dissenting judgements that the Montana Supreme Courts decision is not creating any burden neither on the petitioners nor their respective religious exercise. Also Breyer with Kagan JJ., as to part I, validating their dissents through a separate judgment by observing that the First Amendment's Free Exercise Clause assures ones right to practice religion. But its establishment clauses forbids government support for religion and the religious clauses have aided the nation to stay distant from religiously oriented indifference while securing liberty for those of all faith.

    In the judgments, it observes :

    The majority barely acknowledges the play-in-the-joints doctrine here. It holds that the Free Exercise Clause for- bids a State to draw any distinction between secular and religious uses of government aid to private schools that is not required by the Establishment Clause. The majority's approach and its conclusion in this case, I fear, risk the kind of entanglement and conflict that the Religion Clauses are intended to prevent. I consequently dissent.

    The dissenting judgment Breyer with Kagan JJ., of is giving a positive approach towards the position held in Locke than the decision laid in Trinity Lutheran.

    The judgment states : "The majority finds that the school-playground case, Trinity Lutheran, and not the religious-studies case, Locke, controls here. I disagree. In my view, the program at issue here is strikingly similar to the program we upheld in Locke and importantly different from the program we found un- constitutional in Trinity Lutheran."

    Justice Sotomayor 's dissenting view is related to the aspect that the court had overreached in its decision making and he recorded in his judgment that , "Today's ruling is 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. We once recognized that "[w]hile the Free Exercise Clause clearly prohibits the use of state action to deny the rights of free exercise to anyone, it has never meant that a majority could use the machinery of the State to practice its beliefs." Today's Court, by contrast, rejects the Religion Clauses' balanced values in favor of a new theory of free exercise, and it does so only by setting aside well-established judicial constraints."

    Click here to download judgment

    Read Judgment

    Next Story