Amicus Brief Filed in Most Important Education Case in Decades
Blaine Amendment has denied millions their Constitutional Rights

WASHINGTON, D.C. — With the U.S. Supreme Court scheduled to consider the most important education case in decades, organizations representing parents, educators, successful schools and policymakers have joined in filing an Amicus Brief to the High Court in the case Espinoza v. Montana Department of Revenue. The case centers on the constitutionality of Montana’s Blaine Amendment and its application to deny parents the ability to direct the education of their children. The Blaine Amendment, enacted in a majority of states following its 1875 conception, is the reason many states say they cannot permit the flow of tax dollars allocated for education to religiously affiliated schools, even if parents need and prefer those options to their traditional public school.

Calling the use of Blaine Amendments to deny parents the option to send their children to schools best suited for their needs the “tyranny of zip code,” the amicus argues first that “denying parents the ability to exercise that right because of the religious affiliation of the schools they deem best-suited for their children results in numerous direct and significant injuries to core constitutional interests. It infringes upon parents’ liberty interest in directing their children’s upbringing, and it infringes upon the fundamental First Amendment protection of free exercise.”

Parents have a constitutionally protected liberty interest to the best educational opportunity for their children. Empowering parents to exercise their constitutional right results in better educational outcomes as evidenced by numerous studies on brain science and individual learning. Denying parents their school of choice because of its religious nature injures parents and children by violating bedrock constitutional principles.

According to the brief’s author, former Solicitor General Paul Clement, citing numerous court precedents, “Denying parents their preferred option among a wide variety of otherwise neutrally available options merely because it is religiously affiliated is tantamount to denying them the ability to direct their children’s education and send them to their school of choice. But parents—not the government—have both the fundamental right and the high calling to direct the education and upbringing of their children.” 

“Denying parents the ability to send their children to a desired school simply because that school is religiously affiliated directly implicates First Amendment concerns as well. The Free Exercise Clause “‘protect[s] religious observers against unequal treatment’ and subjects to the strictest scrutiny laws that target the religious for ‘special disabilities’ based on their ‘religious status.’” 

The brief was filed by CER and 16 additional amici.

About the case: Plaintiff Kendra Espinoza was denied access to scholarships that would have helped lower the cost of her children’s education. She is represented by the Institute for Justice. Espinoza will be heard during the 2019-20 term, and a ruling is expected by June 2020. If the Supreme Court reverses the decision in favor of Espinoza, the case will be one of the most significant cases for education and parental rights in recent history. 

To get a copy of the brief, please contact CER at [email protected].

Founded in 1993, the Center for Education Reform aims to expand educational opportunities that lead to improved economic outcomes for all Americans — particularly our youth — ensuring that conditions are ripe for innovation, freedom and flexibility throughout U.S. education.

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