WILL, Scott Walker Submit Amicus to U.S. Supreme Court in School Choice Case

School choice, religious freedom at stake in Espinoza v. Montana 

The News: The Wisconsin Institute for Law & Liberty (WILL), on behalf of Governor Scott Walker, filed an amicus brief to the United States Supreme Court in Espinoza v. Montana, a critical school choice and religious freedom case before the justices this session.

Espinoza v. Montana: In 2018, the Montana Supreme Court struck down Montana’s first school choice program, a tax-credit scholarship program. The Court cited the state Constitution’s Blaine Amendment, which prevents the state from using public funds to aid religious organizations, including religious private schools.

Three parents, represented by attorneys at the Institute for Justice, asked the U.S. Supreme Court to review the Montana Supreme Court’s decision and hold that the government may not, consistent with Religion and Equal Protection clauses of the United States Constitution, “invalidate a generally available and religiously neutral student-aid program simply because the program affords students the choice of attending religious schools.” WILL and Scott Walker submitted an amicus in April 2019 urging the Court to take the case.

In July 2019, the Supreme Court accepted the case.

The WILL-Walker Brief: Espinoza could be a landmark case for both school choice and religious liberty. Around 14 states have broad interpretations of so-called “Blaine Amendments”, archaic anti-Catholic laws that restrict state funds from going directly or indirectly to religious organizations (more here). This essentially prevents school voucher programs in those states.

WILL’s brief urges the Court to overturn one of its prior cases, Locke v. Davey, which upheld a college scholarship program in the State of Washington that could not be used to pursue a degree in devotional theology. The Court’s 7-2 majority opinion in 2004 held that singling out religion in this way did not violate the First Amendment. WILL argues states may not discriminate against religion in this way and that the Court was wrong to conclude otherwise.

The Quote: Wisconsin Governor Scott Walker said, “The Montana case before the United States Supreme Court represents hope and opportunity for millions of families across the country who wish to choose where and how their children are educated. School choice works as shown in Wisconsin where more than 40,000 students are part of the program. The Supreme Court now has the opportunity to take a stand for religious freedom and the right of parents to make their own school choices.”

WILL Deputy Counsel Anthony LoCoco said, “The United State Supreme Court has a tremendous opportunity to not only expand school choice but protect religious freedom rights. The use of discriminatory“Blaine Amendments” to block school choice programs is an ugly practice that must end.”

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