A Guide to Designing Educational Choice Programs

July 2020

David Hodges

Educational Choice Attorney

Over the course of the last few decades, the law has gradually changed to recognize the constitutionality of educational choice programs and that its beneficiaries are students, not schools. The most recent development is Espinoza v. Montana Department of Revenue, in which the United States Supreme Court declared that the Constitution forbids states from excluding religious schooling options for families. While this ruling effectively invalidates nearly every Blaine amendment, there is more to be done to ensure that this ruling is enforced, specifically by wiping bad caselaw off the books and establishing school choice programs in every state.

Select Your State

What You've Heard About Blaine Amendments

Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.

The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.

The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.

What You Need to Know After Espinoza

Now that Espinoza is the law of the land, there are opportunities across the country to capitalize on a victory. In almost every single state, there is an opportunity to strike bad Blaine law from the books or to use the momentum to pass long-awaited reforms. In this 50-state guide, IJ explains how Espinoza affects each state’s ability to enact educational choice programs.

Select Your State

Program Status
All Educational Choice Programs
Only Tax Credit and ESA Programs
Educational Choice Programs Unavailable

For More Information

Read Our Model Education Legislation

Contact IJ's Educational Choice Team

David Hodges
(703) 682-9320
Lee McGrath
(703) 682-9320
Erica Smith
(703) 682-9320

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