WASHINGTON (JTA) – For Orthodox Jewish advocacy groups, the last day of the U.S. Supreme Court’s 2020 session brought a big win. On Tuesday, the high court handed school voucher proponents a victory
in ruling that a state-run scholarship program funded by tax-deductible
gifts could not exclude religious schools. The court split 5-4 in the
Espinoza v. Montana Department of Revenue case, with Chief Justice John
Roberts providing the swing vote by joining the conservative justices.
“A State need not subsidize private education,” Roberts wrote. “But
once a State decides to do so, it cannot disqualify some private schools
solely because they are religious.”
The case was significant for Orthodox Jewish advocacy groups that
have fought alongside Christian groups for expanded state aid to
parochial schools. For most Orthodox families, parochial schools are
considered an expensive necessity, and both the Orthodox Union and
Agudath Israel, two major Orthodox organizations, filed briefs on behalf
of the plaintiffs.
“Over the past decade, the Orthodox Union’s advocacy work has
spearheaded the creation or expansion of many state aid programs to
support parental choice in education,” Allen Fagin, executive vice
president of the Orthodox Union, said in a statement applauding the
ruling. “Today’s strong ruling from the Supreme Court solidifies the
legal bases for these programs and bolsters their long-term benefits for
the Jewish community and other faith communities.”
“Agudath Israel has played a leading role in advocating for programs
that make it easier for parents to choose private and religious
schools,” Rabbi A. D. Motzen, Agudath Israel of America’s national
director of state relations, said in a statement. “Today’s ruling
endorses Agudah’s longtime position that states may not bar families
from using state aid at the school of their choice simply because they
choose a religious option.”
The case, in which the Montana Supreme Court had ruled that a
scholarship program funded by tax-deductible donations had to be
dismantled because scholarships used for religious schools would violate
the state constitution’s “no-aid” clause, was viewed as a proxy in the
fight over school vouchers. School vouchers are programs through which
states allow parents to use taxpayer money to pay for tuition at private
schools, most of which are religious in the United States.
Critics of no-aid clauses, also known as Blaine Amendments, have
cited their origins in arguing against their enforcement. The
amendments, which were rooted in anti-Catholic sentiment, were added to
state constitutions in the late 19th century to prohibit the use of
state funds for religious private schools.
It’s unclear whether and how the ruling will affect Jewish schools in
the short term. The ruling does not compel states to offer voucher
programs, and New York and New Jersey, home to the country’s largest
Orthodox Jewish communities and most Orthodox schools, do not permit
vouchers. Lawmakers there are unlikely to create voucher programs, which
are favored by political conservatives.
Still, the case matters because it nudges open the door for state
funding to flow more often to religious schools. It follows a 2017 case
in which the court ruled that a church could not be excluded from
receiving government benefits because of its status as a religious
organization.
“If you wanted to boil down the key contribution of the opinion, it’s
the application of the rule from 2017 to schools,” said Michael
Helfand, associate dean for faculty and research at Pepperdine
University’s Caruso School of Law. “Ultimately it nudges the ball down
the road in terms of the ability of schools to get equal treatment.”
That is increasingly the agenda for Orthodox groups. Fagin of the
Orthodox Union told the Jewish Telegraphic Agency last week that school
choice could become “one of the most important civil rights issues” of
the next decade.
Private schools can already receive public funding for some services,
including busing and textbooks, that are extended to all students.
(Many students who attend yeshivas in New York City ride buses paid for
by the city.) But the broader pot of taxpayer funds goes to public
schools and the students they educate, leaving families and religious
groups to fund private schools.
Receiving additional state funding can be a double-edged sword for
private schools. Some states require students whose education is
subsidized by vouchers to take state exams, with consequences flowing to
schools whose students fall short. That arrangement could be
complicated for Orthodox advocates, who have fought against oversight of
yeshivas in New York City.
In the Espinoza case, one Jewish group filed a brief supporting the original decision by the Montana Supreme Court.
The Montana Association of Rabbis argued that the scholarship program
violated the Free Exercise clause by using taxpayer money to pay for
religious education. The group also noted that the only religious
schools in Montana were Christian, meaning that the program would
effectively privilege Christianity over other religions.
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