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The school choice movement scored a major victory today. The U.S. Supreme Court effectively killed constitutional provisions in 38 states that bar taxpayer aid to parochial schools. The vote was 5-4, with Chief Justice John Roberts writing the decision for the court's conservative justices. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The court's decision is the latest in a series of recent rulings that have lowered the traditional wall separating church and state and requiring government entities to treat religious and non-religious institutions more equally. At issue in today's case was a decision by the Montana Supreme Court that struck down a tax subsidy for both religious and non-religious private schools. The Montana court said the subsidy violated a state constitutional provision banning any state aid to religious schools, whether direct or indirect.
But writing for the U.S. Supreme Court majority today, Chief Justice Roberts said the state court had it backwards. A state need not subsidize private education, but once it decides to do so, it cannot disqualify some private schools because they are religious, he said. Thus, the subsidy enacted by the state legislature for all private school students must stand.
Experts on both sides of the issue agreed that the practical effect of today's decision is to neuter state constitutional provisions in most states that until now have, to one degree or another, barred state aid to religious schools. Francisco Negron, counsel for the National School Boards Association, characterized the status of these state constitutional provisions now this way.
FRANCISCO NEGRON: I think near-death would be a good way of describing them.
TOTENBERG: Dick Komer is senior attorney for the Institute for Justice, which brought today's case on behalf of several parents with children in religious schools in Montana.
DICK KOMER: The legal impediment to effective school choice programs are now removed, and it's up to the legislatures now to move forward.
TOTENBERG: Publicly funded voucher and tax credit programs currently provide aid to private schools in 26 states, according to John Schilling, president of one of the country's leading school choice programs, the American Federation for Children.
JOHN SCHILLING: What we would like to see is state policymakers really step up to the plate here and expand school choice programs and to enact it in the 24 states that don't have these programs.
TOTENBERG: Until now, these aid programs, mainly benefiting private religious schools, have accounted for a relatively small amount - $2.6 billion in aid, according to Schilling. But school choice advocates, including the Trump administration's Education Secretary Betsy DeVos, have pushed hard to increase the funding for what DeVos calls faith-based education. If the state is going to funnel more money to private education, says the School Boards Association's Negron, that will likely provoke more litigation.
NEGRON: The state could say, if you're going to take state money, you can't discriminate against students on, you know, the base of sexual orientation, for instance. Or perhaps the state could say, you are required to participate in our state public health laws, which means that all children have to be vaccinated.
TOTENBERG: And Colorado Attorney General Philip Weiser, who filed a brief on behalf of nine states in the Montana case, says that funding private schools can have unexpected political consequences. He notes that when the school board in Douglas County, a suburb south of Denver, adopted a program that threatened to siphon public money from public schools...
PHILIP WEISER: There was a huge backlash. And not only did our Supreme Court invalidate the program, but the school board that pushed the program got voted out as well.
TOTENBERG: That said, today's ruling was a personal victory for the parents who challenged the Montana ban on aid to religious schools. Kendra Espinoza, the lead plaintiff, was elated by today's ruling. She explained earlier this year why she worked extra jobs so that her two daughters could attend the Stillwater Christian School in Kalispell, Mont.
KENDRA ESPINOZA: We're a Christian family, and I want those values taught at school.
TOTENBERG: Her view prevailed at the Supreme Court today.
Nina Totenberg, NPR News, Washington.
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