A U.S. Supreme Court case is underway that could open public school funding to religious schools in more states, but it’s unclear how it will impact California, where private schools — religious or not — are forbidden from receiving public money.
A question at the heart of the court case Espinoza v. Montana Department of Revenue is whether it is unconstitutional for states to prohibit public money from going to religious schools.
More specifically, it’s about whether states can exclude religious schools from programs that provide tax-credit scholarships for students to attend private schools. Oral arguments for the case began last month.
Education leaders across the country say the case could have groundbreaking ramifications for public school funding and private school choice programs, such as vouchers and tax-credit scholarships, which pay for tuition.
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Critics say the ruling could erode the separation of church and state and make it easier for education dollars to be diverted away from public schools, many of which already are facing budget troubles. Supporters say the ruling could help expand choices for families who want a quality private school alternative to public school but can’t afford it.
The impact of the court case may be more limited in states like California, which has no private school aid program and which forbids public school aid from going to most private schools.
There are two exceptions. California provides some state aid for preschools, including private ones. Also, school districts sometimes pay for students with disabilities to attend private schools when the districts are unable to offer the services those students need.
The conservative-leaning Supreme Court could go as far as to issue a sweeping ruling that says all states must include religious institutions in any state aid programs, not just school funding, said Kevin Welner, director of the National Education Policy Center at the University of Colorado at Boulder.
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But Welner thinks it’s more likely that Supreme Court Chief Justice John Roberts will want a narrower approach. He said the court could say that if a state is giving public funds to private schools, the state cannot discriminate against religious schools by excluding them from that state money.
But if a state doesn’t give aid to private schools at all, such a ruling might not force them to spend on religious schools. Indeed, one of the attorneys arguing for the inclusion of religious schools in voucher programs, Jeffrey Wall, has said that public school spending does not have to include money for private schools, according to the New York Times.
A decision centered around that kind of argument may not affect California because the state already prohibits public funding from going to private schools. California’s constitution states: “No public money shall ever be appropriated for the support of any sectarian or denominational school, or any school not under the exclusive control of the officers of the public schools.”
Such a decision, however, could still affect whether religious preschools can receive state aid, and whether religious schools for students with disabilities can be paid by school districts for educating some of their students.
The Supreme Court’s decision could also affect whether California school districts can reject petitions for new charter schools that have religious affiliations. Currently state law says charter schools, which are publicly-funded schools run independently of school districts, must be non-sectarian.
Vouchers in California?
The Espinoza case concerns Montana’s tax-credit scholarship program, which provides tax credits in exchange for donations to private school scholarship nonprofits. The program mostly benefited students who attended religious schools.
The Montana Supreme Court struck down the program last year, saying that because the program provided aid to religious schools, it violated Montana’s constitution, which says government funds cannot be used for any sectarian purpose or sectarian institution.
Montana and 36 other states, including California, have these so-called Blaine amendments, which are meant to prevent state aid from going to sectarian institutions.
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Meanwhile 29 states and the District of Columbia have a state-backed private school choice program, such as vouchers or tax-credit scholarships, according to the Indianapolis-based organization EdChoice.
Even if the Supreme Court were to strike down all Blaine amendments, that doesn’t mean states that have historically opposed private school choice, such as California, will rush to adopt private school choice.
Still, some are hopeful that such a Supreme Court decision could at least renew interest in California in introducing vouchers, said Will Swaim, president of the California Policy Center, which supports private school choice.
“The conversation around vouchers might actually become real again in California,” Swaim said.
California voters rejected ballot measures that would have introduced vouchers in 1993 and 2000.
But a 2017 poll by UC Berkeley researchers and EdSource, a California education news source, found that most of the voters polled in the state support vouchers or tax credits when they’re for low-income students to attend private schools.
Any proposal for private school choice would likely face strong opposition from California’s teachers unions and other traditional public education advocates. State conversations about school choice recently have been dominated by debates over charter schools, with traditional public school advocates arguing that they divert students — and the state funding that comes with each student — away from school districts.
“There’s a lot of problematic aspects to having, basically, an incentive for students to move from public schools to private schools in how it affects the financing or the funding for public schools,” said Jonathan Kaplan, policy analyst at the California Budget and Policy Center.
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Many voucher supporters say vouchers would help low-income families afford better alternatives to low-performing public schools.
Michael Derrick, principal at the budding Cristo Rey San Diego High School, said a state voucher program helped the last Catholic school he worked at in Milwaukee. There thevoucher program helped boost that school’s enrollment from about 130 to 220 students, he said, and the school became more racially and socioeconomically diverse.
Now Derrick runs Cristo Rey, a Catholic school that will open this fall and will rely entirely on donations and corporate partnerships, rather than tuition.
“Cristo Rey serves only low-income families,” Derrick said. “Our mission is to do what this court ruling may help with, which is to help families of limited financial means have access to private school education.”
A Supreme Court decision in the Espinoza case is expected by this summer.
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