Can Public Aid Benefit Private Schools?
May a state, consistent with the U.S. Constitution, provide financial support to private and parochial schools?
That question will be argued later this month (Jan. 22) when the Supreme Court hears Espanoza v. Montana Department of Revenue, 18-1195. A tax credit to benefit non-public schools was enacted in Montana, but the state ruled that the law was unconstitutional under the state constitution and violated a local variation of the Blaine Amendment.
It’s not the first time some form of aid to private schools has been before the Court. Decisions are all over the board on how states and localities may accommodate the variety of nonpublic education favored by Americans. Petitioners argue this case under the Free Exercise and Equal Protection clauses.
President U.S. Grant had been a zealous supporter of public education, and Rep. James Blaine introduced a constitutional amendment to prohibit aid to nonpublic (especially Catholic) schools which passed stunningly in the House but failed by seven votes in the Senate in 1875. All but 10 states then passed variations of the proposal.
Nebraska’s Art. VII, Sec. 11, adopted in 1875, banned the use of public funds in sectarian education, but, over the years, the constitutional language has changed (1976) and various forms of aid have been approved, e.g., bus rides and textbooks.
The Montana case has generated huge interest (dozens of amicus briefs have been filed) in this age of a rising advocacy of “school choice.” Montana argues that federal constitutional issues were not raised and argued in the state court and cannot be raised now.
The petitioners argue that the question is very much alive and well and was, by no means, settled in Locke v. Davey, decided in 2004. Petitioner’s brief includes (p. 30, ff) a chart showing the striking division among the courts necessitating resolution of the central question in the case.
In many states today (such as Arizona) not only are voucher programs available for some students in parochial and private schools, but also the state’s charter schools are mostly funded with public dollars.
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