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Editor’s note: Montana parent Kendra Espinoza hoped a tax credit would help her pay for a private Christian school for her daughters. But her state’s constitution contains an amendment that bars taxpayer aid to religious institutions. Now, it’s all up to the U.S. Supreme Court as it decides Espinoza v. Montana Department of Revenue. What would a decision in Espinoza’s favor really mean for school choice and public education? The Hechinger Report asked several experts to weigh in. For the perspective of the Heritage Foundation’s Jonathan Butcher, click here. Rutgers’ Bruce Baker and UConn’s Preston Green discuss the issues below.

When states choose to operate a program that involves public (or publicly governed) financing of private service providers, can the state choose to exclude religious providers?

That’s the question that Espinoza v. Montana Department of Revenue asks about U.S. schools.

It’s been nearly two decades since the U.S. Supreme Court said government programs that provide vouchers for schooling, including religious schools, do not violate the establishment clause of the First Amendment, even where most available options are religious schools.

That is, publicly financed, government-administered voucher programs that include religious schools are permissible under the U.S. Constitution. The most relevant previous challenge involved a church wishing to refurbish its playground through a publicly financed grant program in Missouri, which also excluded religious institutions. In that case, the Supreme Court found in favor of the church.

Despite this finding, the nation’s highest court hasn’t thus far held that voucher programs that include religious schools are required.

Related: Opinion: U.S. Supreme Court tax-credit decision won’t change much in terms of public-school spending requirements

Such programs have been permitted now for a while. Yet their expansion has been relatively modest in comparison to that of charter schools. Charter schools similarly involve state financing, allocated to state-chartered, privately managed and operated schools, which typically face at least somewhat tighter state oversight and regulation than purely “private” schools. These legal waters, however, remain murky, requiring that we circle back to this issue later.

Let’s say the high court rules that a state that chooses to operate a voucher or tax-credit program cannot exclude religious providers from receiving subsidies. Let’s assume that there exist state legislatures that would prefer not to have taxpayer dollars used to support religious schooling. Perhaps they are concerned with supporting schools that might discriminate in admissions or other treatment on the basis of sexual orientation of children or parents, or even race. *(See clarification below.)

Perhaps they are concerned that the primary objective of these schools will not be to advance general education, college preparedness or workforce preparation, but rather religious indoctrination. These are valid concerns that a state legislature might have if compelled to include any and all religious institutions as part of an expanded system of publicly financed schooling for the state’s children.

State legislatures faced with these concerns have two clear options — options that may not please those who brought or backed the Espinoza case in the first place. These options may lead to a more restrictive environment in many states than the Espinoza plaintiffs, and the organizations backing them, ever imagined.

The first and most obvious policy option is relatively simple: Halt or eliminate the voucher or tax-credit program altogether, perhaps permitting those students already in the program to complete their K-12 schooling in place. It is highly unlikely the court could rationalize a decision that requires states to have these programs in the first place. So, the most obvious way to pull back the reins and avoid deeper entanglement of church and state is to eliminate them altogether.

The second option is to adopt appropriate statutory and regulatory — but religion-neutral — restrictions on schools that would be eligible to participate. The Supreme Court may declare that states cannot exclude religious institutions from participating in the program, but state legislatures may adopt legislation (and state education departments may impose regulations) to address legislators’ concerns.

States can, for example, adopt — as a condition of participation and receipt of funding — non-discrimination requirements, including prohibitions on excluding students on the basis of their race, ethnicity or sexual orientation.

The high court has accepted “all-comers” policies in prior cases, over objections of religious organizations, to the extent that these policies are applied neutrally with respect to religion.

Related: I got to choose private schools, but will vouchers really help other kids make it?

States may also tighten regulations around a) curriculum standards; b) state assessments; c) employee professional credentials; and d) facilities, in order to ensure that children are receiving the broad-based preparation that is in the states’ interest.

Again, these requirements are only to be imposed on those institutions seeking to make use of taxpayer dollars — funds for which the state is necessarily the steward. These regulations in no way impede “free exercise” of religion in that institutions choosing not to comply can simply leave the money on the table, and exercise as they wish, for free.

This brings us back to charter schools. Early in the charter movement, education law scholar Preston Green (co-author of this op-ed) explained that it might be difficult — constitutionally — for states to exclude religious institutions from applying for and receiving charters to run charter schools.

A Supreme Court decision in favor of the plaintiffs in Espinoza makes this even more likely, potentially negating provisions in state charter laws that attempt to explicitly exclude churches or religious organizations from running charter schools, or religious schools from converting to charter schools. Faced with this possibility, state legislatures may find it necessary to dramatically curb expansion of charter schooling, or even halt the approval of new charter applications.

The elimination or reduction of tuition tax-credit programs and/or tightening the regulatory reins around them are two logical solutions to a Supreme Court decision in favor of Espinoza.

These are two solutions that certainly aren’t preferred by the broader political movement or the actors behind this case.

The ripple effects may even be felt by the charter-school sector.

*Clarification: After publication of this article, a reader noted that the Supreme Court ruling Runyon v. McCrary (1976) forbids discrimination by race in private schools. We added a parenthetical editor’s note saying that current federal law does not permit private schools to discriminate on the basis of race. This note was overly broad. The authors explained that Runyon does not expressly address sectarian schools, a subset of private schools. Indeed, the Court specifies that its ruling offers no opportunity to address “private sectarian schools that practice Racial Exclusion on religious grounds.” Although it is unlikely that parochial schools would engage in racial discrimination, Runyon does not specifically address that possibility. This clarification should have been obtained from the authors before the editor’s note was appended.

The story about Espinoza v. Montana Department of Revenue was produced by The Hechinger Report, a nonprofit, independent news organization focused on inequality and innovation in education. Sign up for our newsletter.

Bruce Baker is a professor in the Rutgers Graduate School of Education‘s department of educational theory, policy and administration.

Preston Green is a professor of educational leadership and law at the University of Connecticut and the John and Maria Neag Professor of Urban Education in the university’s Neag School of Education.

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