February 10, 2020

What's Really at Stake in the Supreme Court's Religious School Vouchers Case?

[Cross-posted from Harvard Law Review Blog]

By Aaron Tang

The Supreme Court has just heard oral argument in Espinoza v. Montana Department of Revenue, a high-profile case involving a Montana private school voucher program that a number of families used to enroll their children in religious schools.  The Montana Supreme Court struck down the program, ruling that it violates a Montana constitutional provision that forbids any public funding to be used in aid of a religious school. 

Now the Supreme Court is set to decide if Montana’s application of its no-aid-to-religious-schools provision was itself unconstitutional.  The question is profoundly important because at last count thirty-eight states have similar prohibitions in their constitutions.

For proponents of religious education, oral argument could hardly have gone better.  The only Justice who asked probing questions of both sides was Chief Justice Roberts, but even he tipped his hand in analogizing Montana’s action to an outright instance of racial discrimination.  Suppose a state were to “buil[d] parks and pools,” the Chief began, but then decide that “if a higher percentage of African Americans come and use the pools, then we’re going to shut down the whole program. . . . That wouldn’t be good under your view, would it?  [Yet] how is that different than religion, which is also protected under [the Constitution]?”      

Given the likely outcome in the case, what are progressives to do?  It depends on what we really think is at stake in this case.  There are three possibilities.

One worry is that by striking down state no-aid provisions, the Court will threaten the wall between church and state by forcing states to subsidize religious education.  But this isn’t quite right: nothing in the Supreme Court’s looming decision will force states to enact private school vouchers at all.  As even counsel for the families challenging the Montana Supreme Court decision conceded, a state would be perfectly free to fund only its public schools, thus offering notaxpayer dollars to any private school, religious or secular.

The core constitutional principle in the case, in other words, isn’t the fear that states will use public dollars to establish religion over secularism (or one religion over another).  The principle is instead one of equal treatment: if a state decides to offer public funding to secular private schools, must it treat religious private schools equally?  That is a less objectionable demand—indeed, there is broad support for the general notion that people should not be subjected to disfavored treatment on the basis of their religion.  Federal anti-discrimination law, for instance, already forbids employers to fire employees because of their religion.  It’s not a far leap to think a similar rule should apply to institutions, too.  Things would be vastly different, to be sure, if public dollars were used to force unwilling students to attend a religious school.  But worries about government coercion or endorsement are mitigated when, as here, voucher-using families choose to do so on their own free will.

A second possibility is that this case is not actually about religion, but rather about school vouchers.  On this view, the progressive nightmare in Espinoza is that it will lend further support for the private school choice movement.  As Democratic presidential hopeful Senator Elizabeth Warren puts it, Democrats should oppose vouchers because they “diver[t] public dollars from traditional public schools.”

But is that necessarily a bad thing for Montana school children?  It turns out the research evidence is far from conclusive on either side.  Four recent studies have found significant negative effects from voucher use on participating students, but eight earlier studies found modest positive effects.  Complicating matters further, a leading survey of research recently concluded that “virtually all of th[e] studies” of voucher effects on public schools “find that public-school achievement increases” after a voucher program is introduced, though some of that effect may owe to the power of school accountability generally.  Vouchers, in short, may actually spark improvement in our public schools.  And at a minimum, vouchers offer a modicum of educational choice to low-income parents—choices that their more affluent counterparts already enjoy.

Given this uncertain evidence, it strikes me that the battle over school vouchers is not a worthwhile hill for progressives to die on.  In fact, progressives generally support the use of taxpayer dollars at private schools when the public schools fail students with disabilities; perhaps the same should be true for low-income students, too. 

There is, however, one more issue at stake in this case that progressives ought to take to the mat: nearly one-third of the private religious schools that participated in Montana’s voucher program expressly discriminate against LGBT staff and/or employees.  A prior study estimated roughly fourteen percent of religious schools nationwide have similar policies.  Here’s an example from the one participating Montana school’s handbook:

“Heritage Christian School reserves the right to . . . reject students, either new or current, at its sole discretion on the basis of . . . lesbian, gay, bisexual and/or transgender conduct.” 

It is one thing for a religious school to demand that it not be subjected to discrimination in the receipt of generally applicable benefits like a private school voucher program.  It’s quite another for a religious school to demand non-discriminatory treatment even as it engages in its own discrimination against its students.  The latter is, to say the least, not ok.

So what are progressives to do?  One idea is for progressive lawmakers to offer their support for private school voucher programs that are available to low-income students to attend secular and religious schools alike, conditioned on the requirement that receiving schools may not discriminate on basis of LGBT status, race, or other protected characteristics.  Under that neutral, generally applicable (and therefore constitutionally permissible) rule, all private schools—religious and secular—would be eligible to receive the voucher so long as they follow basic anti-discrimination norms.

Such an approach might create a broad, bipartisan consensus around shared values: religious schools shouldn’t be punished just because of their affiliation; private school choice should be available to low-income students so long as the evidence continues to suggest it may be beneficial; and crucially, no private school—whether religious or not—should be allowed to discriminate against its students.  The latter point in particular enjoys widespread support in our society: a recent survey found sixty-nine percent of Americans favor laws protecting LGBT persons from discrimination.

Not only would such a compromise preserve basic equal-treatment values that progressives care deeply about, it would also force conservatives to admit what they really value, too.  Many conservatives, I believe, will be more than happy with eliminating the differential treatment of religious institutions and promoting school choice for disadvantaged students.  These principled conservatives should gladly support a voucher policy with anti-discrimination provisions. 

And for any conservatives who want Espinoza to stand for the proposition that they can use taxpayer dollars to discriminate against members of the LGBT community?  They would be forced to say those untenable words aloud.