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  • Writer's pictureAdam Dayan, Esq.

SCOTUS Decides Espinoza et al. v Montana Department of Revenue et al. & Protects Freedom Of Religion

Updated: Feb 2, 2022

As parents of special needs students in New York City may know, the New York City Department of Education (DOE) typically argues that, due to separation of church and state considerations ("church" here applying to religion broadly), the DOE cannot use taxpayer dollars to fund religious instruction.  

The result is that, even in instances where the DOE has completely failed to provide a special needs child with a free appropriate public education (FAPE), and the parents have been left with no choice but to enroll their child in a private special education school, the DOE refuses to provide full funding for the student's private school program if the program includes religious instruction.  

While it is not uncommon for hearing officers to take a different view of this issue at impartial hearings, during settlement negotiations with the DOE, where parents seek to resolve their claims informally without litigation, the DOE's position has frustrated parents of special needs children seeking to be made whole for the cost of their child's education.  Enter Espinoza et al. v. Montana Department of Revenue et al., a recent United States Supreme Court (SCOTUS) decision that considered the issue of taxpayer dollars being used for religious purposes. The New York Times reported on this decision on June 30, accessible here.   I won't recite the entire factual background, but here are a few main points: 

  • Montana's Constitution barred government aid to any school controlled by a church, sect, or denomination (the "no-aid provision")

  • The Montana legislature created a program to provide tuition assistance to parents who send their children to private schools; tax credits were granted to anyone who donated to organizations that awarded scholarships to students attending private schools 

  • The Montana Department of Revenue chimed in regarding the scholarship program and prohibited families from using scholarships at religious schools 

  • The Montana Attorney General warned the Department of Revenue that excluding religious schools from the program would very likely violate the U.S. Constitution by discriminating against the schools and their students 

  • This lawsuit was brought by parents who were blocked from using scholarship funds for their children's tuition at a religious school, on the basis that the Department of Revenue's rule discriminated against them on the basis of their religious views and the religious nature of the school they had chosen 

  • It is noteworthy that the scholarship organization highlighted in the decision focused on providing scholarships to families have children with disabilities 

In a 5-4 decision (Roberts, Thomas, Alito, Gorsuch, and Kavanaugh in the majority) whose opinion was written by Chief Justice Roberts, SCOTUS held that Montana discriminated against religious schools and the families whose children attend or hope to attend them in violation of the Free Exercise Clause under the First Amendment of the U.S. Constitution.   As per SCOTUS, the Free Exercise Clause, which "protects religious observers against unequal treatment," empowers parents to choose a religious school if they so choose.  SCOTUS, quoting Trinity Lutheran Church of Columbia, Inc. . Comer, stated that "disqualifying otherwise eligible recipients from a public benefit 'solely because of their religious character' imposes 'a penalty on the free exercise of religion that triggers the most exacting scrutiny."   SCOTUS held that the Montana Supreme Court was obligated to disregard the no-aid provision and decide the case consistent with the U.S. Constitution.  Parents have a right to choose the religious upbringing of their children, and many parents exercise that right by sending their children to religious school, which SCOTUS emphasized is protected by the U.S. Constitution.  SCOTUS made clear that a state's interest in separating church and State to a greater extent than the U.S. Constitution cannot qualify as compelling when looking at the infringement of free exercise.     The same reasoning should be applied to special education due process proceedings with respect to parents' FAPE claims against the DOE for private school tuition funding.   As Montana discriminated with its no-aid provision, the DOE discriminates based on the religious status of the schools in which parents of special needs children choose to enroll their children.  Telling parents of special needs children whose rights were violated by their local school district that they cannot recover the full tuition for a private school tuition they were forced to find on their own just because the private school includes a religious component is discriminatory.  Provided that a private school with a religious component is able to meet a child's unique special education needs, that student's parents should not be barred from recovering funding for the full cost of such program.   The New York City DOE, like the State of Montana in Espinoza, is attempting to create a greater separation of church and State than the U.S. Constitution requires.  Preventing special needs parents whose children were denied FAPE from being able to secure funding for religious instruction is, in the words of the Supreme Court (quoting Trinity Lutheran), "'odious to our Constitution' and 'cannot stand.'"  As in Espinoza, the DOE's actions are "especially unconvincing because the infringement broadly burdens not only religious schools but also the families whose children attend them."  

While I don't expect that the DOE will stop attempting to argue against funding for religious instruction, I do believe that this holding from the highest court in our nation arms parents with the authority they need to let school districts know that this type of discrimination on the basis of religion is not permissible and cannot stand.  


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