Alice O’Brien is General Counsel at the National Education Association.

The Supreme Court in Espinoza v. Montana Department of Revenue faces the question of whether, and if so to what degree, the federal free exercise clause restricts how states provide quality K-12 education systems. The petitioners seek a sweeping ruling that would prevent states from enforcing a myriad of state constitutional provisions safeguarding their free, nonsectarian public schools. This result, they assert, naturally follows from the court’s decision in Trinity Lutheran Church of Columbia, Inc. v. Comer that a state cannot preclude religious organizations from receiving generally available playground-resurfacing grants. The respondents will argue that Trinity Lutheran, for a variety of reasons, does not prohibit states from choosing to fund only nonsectarian public schools. This post focuses on just one of the reasons: the deference due state constitutional public education provisions.

The federal constitution contains no specific education provisions, but every state constitution includes at least one provision requiring the state to establish and support some type of public education system — and most contain several provisions concerning the establishment, administration and funding of public schools. These state constitutional education provisions reflect different, deeply considered and carefully drawn commitments about how to provide educational services. At the same time, these provisions recognize that state education systems must be adequately resourced, subject to uniform standards and open to all students.

For example, almost all state constitutions include education clauses mandating that the public-school systems meet a certain qualitative standard, whether it be “high quality” (Ill.), “thorough and efficient” (Md., N.J., Ohio, W.Va., Wyo.), “suitable” (Alaska, Kan.) or “general and uniform” (Ariz., Minn., N.C., Ore., S.D., Wash.). Many state constitutions also specify how or in what priority schools shall be funded, providing, for example, that public-school funding is a paramount fiscal obligation of the state (Nev.), or may be used exclusively for public primary and secondary education (Fla.) or that certain funds may be used only for the public schools (e.g., Calif., Colo., Conn., Del., Fla., Idaho, Md., Mo., Mont., Neb., N.J., N.D., Ore., R.I.). And most state constitutions, including Montana’s, prohibit funding sectarian schools.

Although a number of these provisions precede the federal constitution’s ratification, state constitutions are typically subject to more frequent review and amendment than the federal constitution, and state educational provisions are no exception. As a result, the state constitutional education provisions reflect both accrued wisdom and robust and contemporaneous state-level debates about whether and how to provide public education. In many instances (as both academics and courts have detailed) these debates have evinced common understandings that: a uniform quality system of public education is essential to democratic self-governance; entangling the state in funding religious education leads to sectarian conflict; and the state’s constitutional obligation to ensure a quality education system requires substantial regulation of the schools it funds, raising irreconcilable constitutional conflicts if extended to sectarian schools. Moreover, given that the vast majority of private schools historically have been and continue to be religious schools, prohibitions on aid to sectarian schools have been considered important as a means of safeguarding limited state funds for public education.

The section of the Montana constitution’s education article at issue in Espinoza was adopted in response to these sorts of longstanding concerns and was amended and revised relatively recently, which reflects a contemporaneous ratification of its sweeping terms. Titled “Aid Prohibited to Sectarian Schools,” the Montana provision states that the government “shall not make any direct or indirect appropriation or payment … to aid any church, school, academy … controlled in whole or in part by any church, sect, or denomination.” Although much of that language dates back to Montana’s original constitution of 1889, the provision was the subject of debate and amendment during Montana’s 1972 constitutional convention, where it was modified to provide a narrow exception to its sweep. Delegates supporting the provision explained to the convention that the language ensures “unequivocal support” for the Montana public education system as “[a]ny diversion of funds or effort from the public school system would tend to weaken that system in favor of schools established for private or religious purposes.” The 1972 reconsideration and subsequent ratification by Montana voters negates any notion that the Montana provision can be discarded as the product of 19th-century anti-Catholic sentiment.

Nor is there anything in the adoption of the U.S. Constitution, or for that matter the adoption of the 14th Amendment incorporating the federal free exercise protections against the states, to support the conclusion that the free exercise clause originally was intended to eclipse state constitutional provisions safeguarding nonsectarian public schools or preventing state funding of sectarian schools. Stretching the federal free exercise clause so far, into a federal mandate for state funding of religious schools, would sweep away scores of state constitutional provisions prohibiting that very result.

As the Supreme Court has made clear since Reynolds v. Sims, the federal constitution controls only “when there is an unavoidable conflict between the federal and state constitutions.” In Espinoza, such a conflict is avoidable. The court should not transform the federal free exercise clause into a mandate for state funding of religious schools. Rather, the court should respect Montana’s considered constitutional choice about how best to fund its education system and refrain from sweeping away more than a century of state constitutional provisions.

Posted in Espinoza v. Montana Department of Revenue, Featured, Symposium before oral argument in Espinoza v. Montana Department of Revenue

Recommended Citation: Alice O'Brien, Symposium: The deference due state constitutional protections for public education, SCOTUSblog (Sep. 17, 2019, 2:30 PM), https://www.scotusblog.com/2019/09/symposium-the-deference-due-state-constitutional-protections-for-public-education/