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School Choice on trial

MADISON — Taxpayer funding for faith-based education goes on trial before the U.S. Supreme Court this week in a potentially pivotal case for school choice.

The high court on Wednesday will hear Espinoza v. Montana Department of Revenue a challenge of the Montana Supreme Court’s 2015 ruling that said state-sponsored scholarship money could not go to fund students attending religiously affiliated private schools.

Montana’s legislature, like Wisconsin’s, decided that every family — regardless of income — should be able to choose the school that best fits their children’s needs. The legislature created the tax-credit scholarship program enabling low-income families to send their children to private schools, including religious schools. The Montana Supreme Court ruled against the religious portion of the program, asserting the state’s constitution restricts “any” state aid to religious schools.

The court ruled that Montana’s constitution draws a “more stringent line than that drawn” by its federal counterpart. How can that be?

School choice, it would seem is a matter of settled law. The U.S. Supreme Court in 2002 upheld Cleveland’s school choice program on the grounds that taxpayer-funded aid to religious schools is constitutional if the program remains neutral and the money is distributed to a “broad class of citizens.”

Montana’s scholarship program would seem to fit the high court’s criteria.

So what’s left is a matter of religious liberty, according to Richard Komer, senior attorney for the Institute of Justice, the national civil rights law firm that is litigating the case.

“Excluding religious options from generally available student-aid programs violates the religious liberties of families and is flatly unconstitutional under the federal Constitution,” Komer said in a statement. 

The case is being closely watched by advocates and opponents of school choice nationwide.

Former Gov. Scott Walker, who oversaw a major expansion of Wisconsin’s private school vouchers system, filed an amicus brief in the case urging the Supreme Court to reverse the state court’s decision. Walker is being represented by the Wisconsin Institute for Law & Liberty.

The Milwaukee Parental Choice Program, America’s longest-running private school voucher program, was one of Gov. Tommy Thompson’s signature achievements over his executive tenure.

In 2013, Wisconsin expanded its voucher program statewide. The Wisconsin Parental Choice Program’s enrollment had surged to 9,764 students in 254 private schools across the state as of last fall. Milwaukee’s school choice program was approaching 30,000 students.

The Wisconsin Supreme Court in 1998 ruled the school voucher program is constitutional.

School choice has long been under assault in Wisconsin. Gov. Tony Evers in his first budget proposed freezing enrollment on what many saw as the program’s path to extinction. Evers formerly served as superintendent of the state Department of Public Instruction, which has had a history of hostility to school choice. For years, the Department of Justice under President Obama harassed voucher schools in an ongoing discrimination investigation which quietly ended without action.

Opponents of school choice claim it’s not fair to take badly needed resources from public schools to assist private schools. Think of the children! they cry. But proponents have long argued that, if the goal is really about children, then funding shouldn’t follow schools, it should follow students.

Scott Bullock, president and general counsel of the Institute for Justice, said if the court hands down a victory for school choice in Montana, it will “remove the largest legal obstacle standing between thousands of children and their chance to receive a better education.”

“I believe that school choice is important for all families and all parents everywhere, not just for myself and my children. It is my right as a parent to choose how my children are educated, and not the government’s right to do that,” said Kendra Espinoza, the lead plaintiff in the case.

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