Born of Bigotry,
Died in Religious Liberty:
The Supreme Court Ends the Blaine Amendments in Empowering Parental Choice
Charles J. Russo & William E. Thro
“The Blaine Amendment was ‘born of bigotry.”’1Espinoza v. Montana Dep’t of Revenue, No. 18-1195, 2020 WL 3518364, at *9 (U.S. June 20, 2020) (citing Mitchell v. Helms, 530 U.S. 793, 829 (2000), reh’g denied, 530 U.S. 1296 (2000), on remand sub nom. Helms v. Picard, 229 F.3d 467 (5th Cir. 2000)) (“This doctrine, born of bigotry, should be buried now.”) (Justice Thomas announced the plurality judgment of the Court in which Chief Justice Rehnquist, Justice Scalia, and Justice Kennedy joined) (expanding the boundaries of permissible aid to faith-based schools by upholding the constitutionality of Chapter 2 of Title I, then Title VI, of the Elementary and Secondary Education Act, 20 U.S.C.A. §§ 7301–73, a federal statute allowing loans of instructional materials such as library books, computers, television sets, tape recorders, and maps to non-public schools). For a commentary on this case, see Ralph D. Mawdsley & Charles J. Russo, Religious Schools and Government Assistance: What is Acceptable After Helms?”, 151 Educ. L. Rep. 373 (2002).
Reasonable people can certainly disagree over whether Chief Justice John Roberts’ forceful words in the opinion of the five-to-four judgement in Espinoza v. Montana Department of Taxation,2Espinoza, 2020 WL 3518364, at *9. which produced seven different opinions,3Chief Justice Roberts delivered the opinion of the Court, in which Justices Thomas, Alito, Gorsuch, and Kavanaugh joined. Justice Thomas filed a concurring opinion, in which Justice Gorsuch joined. Justices Alito and Gorsuch filed concurring opinions. Justice Ginsburg filed a dissenting opinion, in which Justice Kagan joined. Justice Breyer filed a dissenting opinion, in which Justice Kagan joined as to Part I. Justice Sotomayor filed a dissenting opinion. was the stake through the heart of the anti-Catholic Blaine Amendments that brought their jurisprudential reign of terror to a timely end. This much is clear, though: “[t]he no-aid provisions of the 19th century hardly evince a tradition that should inform our understanding of the Free Exercise Clause.”4Espinoza, 2020 WL 3518364, at *9. The upshot is that if the Blaine Amendments are still viable, which is a dubious proposition at best, they are on life support as the Court seeks to end discrimination toward faith-based institutions and people of faith in an ever religiously diversifying United States.5In U.S., Decline of Christianity Continues at Rapid Pace: An Update on America’s Changing Religious Landscape, Pew Research Center (Oct. 17, 2019), https://www.pewforum.org/2019/10/17/in-u-s-decline-of-christianity-continues-at-rapid-pace/?utm_source=Pew+Research+Center &utm_campaign=d8dae17adc-EMAIL_ CAMPAIGN_2019_10_17_01_06&utm_medium=email& utm_term=0_3e953b9b70-d8dae17adc-399916797 (reporting that in telephone surveys in 2018 and 2019, 65% of American adults describe themselves as Christians, down 12 percentage points over the past decade; the religiously unaffiliated share of the population, those who describe their religious identity as atheist, agnostic or “nothing in particular,” now stands at 26%, up from 17% in 2009).
The significance of Espinoza goes far beyond ending the longstanding form of legalized bigotry enshrined in Blaine-type language in state constitutions. Indeed, Espinoza is a major victory for both religious freedom and the rights of parents to choose where their children will be educated. In Espinoza, the Court essentially rejected the metaphor of the “wall of separation between church and state,” coined by Roger Williams in the 1640s6See Roger Williams, Mr. Cotton’s Letter Lately Printed, Examined and Answered (1644), reprinted in 1 The Complete Writings of Roger Williams313, 392 (Reuben Aldridge Guild A.M., ed., 1963) (“when they have opened a gap in the hedge or wall of Separation between the Garden of the Church and the Wilderness of the world. . . . ”). but popularized by Thomas Jefferson in 1802,7See letter from President Thomas Jefferson to Nehemiah Dodge, Ephraim Robbins, and Stephen S. Nelson, A Committee of the Danbury Baptist Association (Jan. 1, 1802) Jefferson wrote: Believing with you that religion is a matter which lies solely between man and his God . . . I contemplate with sovereign reverence that act of the whole American people which declared that their legislature should “make no law respecting an establishment of religion, or prohibiting the free exercise thereof,” thus building a wall of separation between church and state. which is the view most often associated with its First Amendment Court’s jurisprudence for the better part of the past seventy-five years.8For a seminal case protecting the free exercise of religion in education, albeit under the Fourteenth, rather than First, Amendment, see Pierce v. Society of Sisters of the Holy Names of Jesus and Mary, 268 U.S. 510, 534-35 (1925) (invalidating a voter-approved initiative from Oregon that not only would have required all children, other than those who would today be identified as needing special education, to attend public schools because the law would have seriously impaired, if not destroyed, the profitability of non-public schools, but also because it “unreasonably interfere[d] with the liberty of parents and guardians to direct the upbringing and education of children under their control”) Consequently, the Court no longer allows States to rely on either the Establishment Clause or Blaine-type language in their constitutions to treat religious institutions and people of faith differently from the general public.
Espinoza began when three mothers in Northwestern Montana sued their state Department of Taxation, challenging the exclusion of the Christian school their children attended from participating in a tax credit program even though it met the statutory criteria making it otherwise eligible to do so. Under the program, taxpayers were entitled to dollar-for-dollar tax credits for contributions of up to the modest amount of $150 per year they made to a Student Scholarship Organization. This program allowed parents to use their contributions to the tax replacement program towards their tuition payments, and parents could exercise their right to choose where their children would attend school.
In an unreported opinion, a state trial court in Montana granted the mothers’ request for summary judgment, essentially upholding the constitutionality of the program without the disputed rule which excluded faith-based schools from participating.9Espinoza v. Montana Dep’t of Revenue, 435 P.3d 603 at 608 (Mont. 2018). However, relying largely on Blaine-type language in the state constitution, which bars state aid to sectarian schools,10Montana Const. art. X, § 6. This provision reads: “Section 6. Aid prohibited to sectarian schools. (1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination. (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” the Supreme Court of Montana reversed in favor of the state.11Espinoza, 435 P.3d 603, cert. granted, 139 S. Ct. 2777 (2019).
As aptly described in Justice Alto’s concurrence in Espinoza,12Espinoza, 2020 WL 3518364, at *15 (Alito, J., concurring). James K. Blaine of Maine, former Congressman, Senator, and unsuccessful Republican candidate for President, introduced a constitutional amendment intended to deny aid to schools “under the control of any religious sect,”134 Cong. Rec. 205 (1875) (Blaine’s statement submitting a proposed constitutional amendment to Congress). blatant bigoted code for Roman Catholic schools. Blaine proposed this amendment after President Ulysses S. Grant’s final State of the Union address on December 7, 1875, in which he called for a constitutional amendment “forbidding the teaching [of religion in public schools] . . . and prohibiting the granting of any school funds, or school taxes or any part thereof, either by legislative, municipal, or other authority, for the benefit or in aid, directly or indirectly, of any religious sect or denomination. . . .”144 Cong. Rec. 175 (1875) (annual message of the President of the United States).
Near the end of his address, Grant declared that “[n]o sectarian tenets shall ever be taught in any school supported in whole or in part by the State, nation, or by the proceeds of any tax levied upon any community.”15 Id. at 181. Although Congress rejected Blaine’s proposed amendment,16Blaine’s proposed Amendment read: No State shall make any law respecting an establishment of religion or prohibiting the free exercise thereof; and no money raised by taxation in any State for the support of public schools, or derived from any public fund therefore, nor any public lands devoted thereto, shall ever be under the control of any religious sect, nor shall any money so raised or lands so devoted be divided between religious sects or denominations 4 Cong. Rec.205 (1875) (Blaine’s statement submitting a proposed constitutional amendment to Congress). as evidenced in Espinoza, Montana was one of the majority of States17For a good description of the Blaine Amendment and a helpful color-coded map illustrating various permutations of these constitutional provisions, see Blaine Amendment, Institute for Justice, https://ij.org/issues/school-choice/blaine-amendments/. to have incorporated similar provisions in their constitutions.18Amid disagreements on how to count such laws, Justice Sotomayor’s dissent in Trinity Lutheran Church of Columbia v. Comer, 137 S. Ct. 2012, 2037 (2017) (Sotomayor, J., dissenting), indicated that “thirty-eight States have a counterpart to Missouri’s Blaine Amendment.”
Espinoza is significant because it extends the protection of religious freedom and pluralism that the Supreme Court enunciated in Trinity Lutheran Church of Columbia v. Comer (Trinity Lutheran).19Id. For a commentary on this case, see William E. Thro & Charles J. Russo,Odious to the Constitution: The Educational Implications of Trinity Lutheran Church v. Comer,346 Educ. L. Rep.1 (2017). Trinity Lutheran arose when officials of a faith-based preschool and daycare center applied to Missouri’s Department of Natural Resources, hoping to participate in its Scrap Tire Program to acquire material to better protect the children in its care by installing a new playground surface. The Program, which offered a limited number of reimbursement grants to reduce the volume of used tires in landfills and dump sites, provided funds to nonprofit organizations to acquire safe materials for playground surfaces made from recycled tires.
In Trinity Lutheran, the Court held that religious organizations must be full participants in American life. The Court determined that the Free Exercise Clause forbids states from singling out faith-based institutions and/or believers and denying them generally available benefits simply because they are religious. Chief Justice Roberts pithily stated that “the exclusion of Trinity Lutheran from a public benefit for which it is otherwise qualified, solely because it is a church, is odious to our Constitution all the same, and cannot stand.”20Trinity Lutheran Church of Columbia, 137 S. Ct. at 2025. In a society where no faith commands a majority, Roberts acknowledged that while a significant number of people embrace no faith and a vocal minority is hostile to any faith, it is essential that the government not treat people of faith and their organizations as second class citizens.
In Espinoza, as in Trinity Lutheran, Chief Justice Roberts penned an opinion representing a significant victory for religious liberty. In the absence of a Federal Establishment Clause violation, Roberts framed the issue as whether Montana’s state constitution violates the Federal Free Exercise Clause.21The Court’s having ignored the seemingly ubiquitous tripartite test in Lemon v. Kurtzman, 403 U.S. 602 (1971) perhaps signals the unmourned demise its judicial life after creating a great deal of needless havoc for lower courts, judges, and academicians who struggled to divine the meanings of some of its holdings under Lemon; under this test, governmental action must “[f]irst have a secular legislative purpose; second, its principal or primary effect must be one that neither advances nor inhibits religion; finally, the statute must not foster ‘an excessive government entanglement with religion.’” Id. at 612–13. For a discussion of Lemon in this case, see Espinoza, 2020 WL 3518364, at *14 (Thomas, J., concurring). Answering in the affirmative, he invalidated “Montana’s no-aid provision [that] bars religious schools from public benefits solely because of the religious character of the schools.”22Espinoza, 2020 WL 3518364, at *6.
Writing for the Court, Roberts applied strict scrutiny, the most stringent form of constitutional analysis. When courts apply strict scrutiny, rather than the rational relations test,23See, e.g., Romer v. Evans, 517 U.S. 620, 631–32 (1996) (asserting that “. . . if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end.’’) (invalidating an amendment to Colorado’s Constitution forbidding legislative, executive, or judicial action designed to protect individuals who are gay from discrimination because it violated the Fourteenth Amendment’s equal protection clause). the burden shifts to governmental officials to demonstrate that their actions are justified by compelling state interests that are applied in the most narrowly tailored means possible. As reflected in Espinoza, when courts apply strict scrutiny, governmental actions are likely to fail. Moreover, applying this balancing test means not only that restrictions must be narrowly drawn to avoid unnecessarily limiting rights, but also that in using this standard, underlying rights remain protected. Here, Roberts made it clear that excluding religious organizations from various public subsidies merely because they are religious must end.
In the Court’s analysis, the Chief Justice rebuffed Montana’s argument that it had an interest in separating church and state “more fiercely”24Id. at *10. than called for in its Federal counterpart. Rejecting Montana’s Blaine-like Amendment, the Court replied that “[t]here is no compelling interest in separating church and state more than the federal Free Exercise Clause will allow,” reasoning that “Montana’s interest in public education cannot justify a no-aid provision that requires only religious private schools to ‘bear [its] weight.’”25Id. at *11.
Rounding out the judgment of the Court, Chief Justice Roberts emphasized an important point. According to the Chief Justice, “[a] State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”26Id.
Justice Thomas joined all parts of the Opinion of the Court but, joined by Justice Gorsuch, wrote “separately to explain how this Court’s interpretation of the Establishment Clause continues to hamper free exercise rights.”27Id. at * 12 (Thomas, J., concurring). Justice Thomas made two broad points worthy of further reflection as the Court’s modern Establishment Clause Jurisprudence moves forward.
First, under the Supreme Court’s modern interpretation of the Establishment Clause, Justice Thomas pointed out that there is a constant tension between the Free Exercise rights of individuals and the Establishment Clause. Here, he recognized that governments, through their officials at all levels, frequently rely on the Establishment Clause as a purported justification for infringing on the free exercise rights of individuals and groups. For example, officials at public universities unsuccessfully argued that the Establishment Clause compelled them to deny access28Widmar v. Vincent, 454 U.S. 263 (1981) (finding that once officials at a state university in Missouri made facilities available for activities of registered student groups, they could not prevent faith-based organizations from gathering due to the religious content of their speech). or funding29Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819 (1995) (ruling that university officials violated the Free Speech Clause of the First Amendment by engaging in viewpoint discrimination in denying a Christian student group funding to publish its magazine). to student religious groups while extending these benefits to secular groups.30Espinoza, 2020 WL 3518364, at *12–13. In effect, the modern view of the Establishment Clause, as described by Thomas, diminishes the vitality of the Free Exercise rights31Id. at *14-15. such that it becomes the “lowest rung” on the constitutional ladder.32Id. at *15.
Second, Justice Thomas observed that the “modern view, which presumes that States must remain both completely separate from and virtually silent on matters of religion to comply with the Establishment Clause, is fundamentally incorrect.”33Id. at *13. As Justice Thomas noted on numerous occasions,34Id. *12. the original public meaning of the Establishment Clause was not to create an individual right but, rather, was intended to prevent the National Government from establishing a religion or interfering with the States’ efforts to maintain their own religion established at the state level.35Id. at *13-14; see, e.g., Zelman v. Simmons-Harris, 536 U. S. 639, 678 (2002) (Thomas, J., concurring) (upholding a voucher program because it involved the free choices of parents about where their children can be educated); American Legion v. American Humanist Ass’n, 139 S.Ct. 2067, 2095–96 (2019) (Thomas, J., concurring) (holding that a thirty-two-foot tall Latin atop a pedestal on public land, erected as a memorial to area soldiers who died serving in World War I, did not violate the Establishment Clause).
Following Justice Thomas’ train of thought, even if the Establishment Clause creates an individual right that limits the States, “it would only protect against an ‘establishment’ of religion as understood at the founding, i.e., ‘coercion of religious orthodoxy and of financial support by force of law and threat of penalty.’”36Espinoza, 2020 WL 3518364, at *13. In other words, Thomas believed that the judiciary should never rely on the Establishment Clause to reach such questions as whether a display of a creche was sufficiently secular37See, e.g., Lynch v. Donnelly, 465 U.S. 668 (1984) (upholding the inclusion of a Nativity scene in a Christmas display on public property). For an article on whether creches can be allowed in public schools, see Charles J. Russo, Of Baby Jesus and the Easter Bunny: Does Christianity Still Have a Place in the Educational Marketplace of Ideas in the United States? 16 Educ. & L. J.61 (2006). or whether a governing body could solemnize its meetings with a prayer.38See Town of Greece v. Galloway, 572 U. S. 565 (2014) (upholding a board’s practice of opening its monthly meetings with prayer even if they were explicitly religious as long as they did not praise one faith while denigrating others).
Ultimately, Justice Thomas’ concurrence made three additional points in providing a path toward greater religious freedom, a reaffirmation of a foundational purpose of early American colonization, and, most significantly, a way to achieve what Inazu calls a “Confident Pluralism.”39See John D. Inazu, Confident Pluralism (2016). First, Justice Thomas stands for the proposition that if the individual rights under the Establishment Clause are limited to avoiding coercion, the government will have no possible justification for treating people of faith worse than secular citizens.
Second, Justice Thomas advanced the proposition that it is important to recall that while America had multiple beginnings,40See Colin Woodward, American Nations: A History of the Eleven Regional Cultures of North America (2011). the desire to worship God as they saw fit was vital to the origin of Maryland, Rhode Island, and Utah.41 See Jeffery Sutton, 51 Imperfect Solutions: States and the Making of Constitutional Law 17 (2018). In fact, the Mayflower Compact among pilgrims fleeing religious persecution is a foundation of our constitutional order. Third, Justice Thomas’ concurrence is a reminder that insofar as Americans “lack agreement about the purpose of our country, the nature of the common good, and the meaning of human flourishing,”42Timothy Keller & John Inazu, Uncommon Ground: Living Faithfully in a World of Difference xvi (2020). it is essential that we develop the grace to address our differences through humility, patience, and tolerance.43Id. at xvii-xix.
Clearly, Espinoza is a victory for religious freedom because it prevents States, and public officials, from discriminating against religiously affiliated schools and people of faith. At the same time, Espinoza is a major boost to proponents of school choice.44For representative commentary on school choice, see Mark Berends et. al., School Choice at the Crossroads: Research Perspectives (2019). For a seminal work on school choice, see John E. Chubb & Terry M. Moe, Politics, Parkets, & America’s Schools (1990). Accordingly, given the importance of education as “perhaps the most important function of state and local governments,”45 Brown v. Board of Educ., Topeka, 347 U.S. 483, 493 (1954). a convincing argument can be made that “[s]chool choice is the civil rights statement of the year, of the decade, and probably beyond, because all children have to have access to quality education”46Wesley Whistle, Trump: School Choice is the Civil Rights Statement of The Year, Forbes (June 16, 2020), https://www.forbes.com/sites/wesleywhistle/2020/06/16/trump-school-choice-is-the-civil-rights-statement-of-the-year/#3811fcbe3f46 (quoting President Donald Trump’s comment at a press briefing on June 16, 2020).
School choice is essential because, at a time when American students continue to lag behind their international peers,47See, e.g., Dana Goldstein, ‘It Just Isn’t Working’: PISA Test Scores Cast Doubt on U.S. Education Efforts, N.Y. Times (Dec. 5, 2019), https://www.nytimes.com/2019/12/03/us/us-students-international-test-scores.html; Valerie Strauss, ‘A Nation at Risk’ Demanded Education Reform 35 Years Ago. Here’s How It’s Been Bungled Ever Since., Washington Post (Apr. 26, 2018) https://www.washingtonpost.com/news/answer-sheet/wp/2018/04/26/the-landmark-a-nation-at-risk-called-for-education-reform-35-years-ago-heres-how-it-was-bungled/; Drew Desilver, U.S. Students’ Academic Achievement till Lags That of Their Peers in Many Other Countries, Pew Research Center (Feb. 15, 2017), https://www.pewresearch.org/fact-tank/2017/02/15/u-s-students-internationally-math-science/. it is essential to remember that “[t]he child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations.”48Pierce v. Soc’y of the Sisters of the Holy Names of Jesus & Mary, 268 U.S. 510, 535 (1925). Put another way, insofar as Americans support the notion of “choice” in a variety of other arenas, it is perplexing why critics such as teacher unions49Jeffrey Dorfman, Teachers Unions, Faulty Economics, and School Choice, Forbes (Nov 13, 2016), https://www.forbes.com/sites/jeffreydorfman/2016/11/13/teachers-unions-faulty-economics-and-school-choice/#671d6ec07c73 (reporting that “[m]ost liberals, who get significant funding from public school teachers unions, line up against any form of school choice”). balk at deferring to parents wishing to exercise their right to choose where their children are to be educated. It is, then, essential to afford parents greater opportunities to have their children educated in the schools of their choice, presumably because their values are consonant with those modeled and taught in those schools.
School choice also offers a possible path toward closing the persistent achievement gap between poor, disproportionately minority children and their wealthy, disproportionately White peers.50See, e.g., William Jeynes, Eliminating the Achievement Gap (2019); Michele Wages, The Achievement Gap: A Poverty Crisis, Not an Education Crisis (2018); Narrowing the Achievement Gap: Strategies for Educating Latino, Black and Asian Students (Susan J. Paik & Herbert J. Walberg, eds., 2007). Simply put, not every child thrives in the centralized secular approach offered in many public schools. Indeed, a strong argument can be made that current educational policies have actually harmed, not helped, Black children, in particular.51 See generally Jason L. Riley, Please Stop Helping Us: How Liberals Make it Harder on Blacks to Succeed (2015). While teachers’ unions and most liberals-progressives oppose school choice,52See, e.g., Laura Meckler, As Pandemic Tests Public Schools, Betsy DeVos Pushes School Choice, Washington Post (June 15, 2020), https://www.washingtonpost.com/local/education/betsy-devos-coronavirus-private-schools/2020/06/15/0c484d94-a50b-11ea-b473-04905b1af82b_story.html (reporting that “[t]eachers unions and many Democrats oppose school choice plans”); Randi Weingarten, School Choice—Past and Present, American Federation of Teachers (July 23, 2017), https://www.aft.org/column/school-choice-past-and-present (speaking as organizational president in opposition to school choice). the reality is that large, even overwhelming, majorities of African-Americans and Latinos favor school choice.53See, e.g., AFC’s Sixth Annual National School Choice Poll Results, American Federation of Teachers (Jan. 21, 2020), https://www.federationforchildren.org/wp-content/uploads/2020/01/1-21-20-AFC-2020-National-Release-Memo-final.pdf (reporting that 83% of both African Americans and Hispanics support school choice in the form of a federal tax credit scholarship program); Neal McClusky, African Americans Speak for Themselves: Most Want School Choice, Cato at Liberty (July 25, 2017), https://www.cato.org/blog/african-americans-speak-themselves-most-want-school-choice.
Aware of the benefits of school choice for students from minority groups, allowing parents to select the schools their children will attend is crucial to the success of their young. School choice is particularly important because research bears out that when parents are free to act as they deem appropriate for their children, their increased involvement typically enhances student academic success.54 See, e.g., Garry Hornby, Parental Involvement in Childhood Education: Building Effective School-Family Partnerships (2011); Sira Park & Susan Holloway, Parental Involvement in Adolescents’ Education: An Examination of the Interplay among School Factors, Parental Role Construction, and Family Income, 28 Sch. Cmty. J. 9 (2018). Student academic success is especially evident in non-public schools which ordinarily have more stringent academic standards.55See, e.g., Cindy Currence, A `Catholic Schools Effect’ Is Reaffirmed By Its Champions, Coleman and Greeley, Education Week (Nov. 14, 1984), https://www.edweek.org/ew/articles/1984/11/14/05240020.h04.html (reporting that Catholic schools are more efficient than public schools in part because of parental involvement and social capital); Researchers have described this resulting beneficial relationship between and among parents, educators in the schools their young attend, and their children as a form of social capital that strengthens the quality of schooling56For background on parental involvement and social capital, see, e.g., James S. Coleman & Thomas Hoffa, Public and Private High Schools: The Impact of Communities (1987); Andrew M. Greeley, Community as social capital: James S. Coleman on Catholic schools, America (Sept. 5, 1987); James Coleman, Social Capital in the Creation of Human Capital, 94 Am. J. of Sociology 95 (1998); James S. Coleman, Policy Perspectives: Parental Involvement in Education, Office of Educational Research and Improvement, Washington, D.C. (June 1991) (addressing concerns about parents’ dwindling role in their children’s lives and the resulting burden placed on schools). and ultimately the Nation.
In sum, Espinoza accomplished three significant ends. First, the Court recognized that religious bigotry, however fashionable in the late nineteenth century, is incompatible with a Republic conceived in liberty.57Abraham Lincoln, Gettysburg Address (1863). Second, at least in the view of Justices’ Thomas and Gorsuch, it is clear that the inalienable right to practice one’s faith is not subordinate to other constitutional values. Third, and most significantly, from a policy standpoint, Espinoza has removed unnecessary roadblocks to school choice. In doing so, Espinoza offers a golden opportunity for parents who previously lacked the full financial resources to pay to have their children educated in the schools of their choice by affording them, rather than government officials, the opportunity to exercise their rights in selecting the schools their children will attend.
Espinoza has the potential to play a major role in helping to end what former President George W. Bush described as the “soft bigotry of low expectations.”58Sam Dillon, Democrats Make Bush School Act an Election Issue, N.Y. Times (Dec. 23, 2007), http://www.nytimes.com/2007/12/23/us/politics/23child.html. This “soft bigotry” condemns many children, especially those from economically deprived backgrounds, to attending low performing schools from which they have little, if any, chance of succeeding academically and beyond. Thus, Espinoza represents a significant step toward achieving the as yet unfulfilled promise of Brown v. Board of Education59347 U.S. 483 (1954). See, e.g., Peter C. LaGreca, Separate and Unequal: The American Dream Unfulfilled, 16 Rutgers Race & L. Rev. 183 (2015); Derrick A. Bell, The Unintended Lessons in Brown v. Board of Education, 49 N.Y.L. Sch. L. Rev. 1053 (2005). of equal educational opportunities for all of America’s children, regardless of their races, creeds, ethnicities, genders, socioeconomic or immigration statuses, and/or (dis)abilities, which is a goal worth pursuing perhaps now more than ever before in the Nation’s history. ♦
Charles J. Russo, M.Div., J.D., Ed.D. is the Joseph Panzer Chair of Education in the School of Education and Health Sciences (SEHS), Director of SEHS’s Ph.D. Program in Educational Leadership, and Research Professor of Law in the School of Law at the University of Dayton, OH. He is also an Adjunct Professor at Notre Dame University of Australia School of Law, Sydney Campus.
William E. Thro, M.A., J.D is General Counsel of the University of Kentucky, former Solicitor General of Virginia, and Vice President of the National Education Finance Academy where he will serve as President in 2022-23. Mr. Thro writes in his personal capacity and his views do not necessarily represent the views of the University of Kentucky.