The Supreme Court Has Unfinished School-Choice Business

Michael Bindas:

The Supreme Court went a long way toward protecting the right of parents to direct the education of their children in Espinoza v. Montana Department of Revenue (2020). But the court’s opinion left a critical constitutional question unresolved. As a result, students are still being denied the opportunity to attend the schools that will best meet their needs. Fortunately, the justices have a chance to finish the job.

In Espinoza, the court held that if a state provides aid for students to attend private schools, it can’t single out religious schools as ineligible and bar students from using the aid to attend them. To do so violates the Constitution’s Free Exercise Clause.

But in his majority opinion, Chief Justice John Roberts stressed that the religious exclusion at issue turned on the religious status of the excluded schools—not the religious use to which a student’s scholarship might be put. He left open whether the state could, in making exclusions, delve into whether a student’s scholarship might be used for religious activity.

Chief Justice Roberts didn’t say a religious-use-based exclusion would have been constitutionally permissible; if anything, he suggested the opposite. But as he commonly does, he opted to take an incremental approach and concluded that the court didn’t need to deal with the religious-use issue in Espinoza.