Pennsylvania watches as Supreme Court considers public support for parochial schools

Pennsylvanians on both sides of the school choice debate watched the U.S. Supreme Court last week for hints of how it could rule in a pivotal case that has implications for the way K-12 education is funded across the nation.

Justices heard arguments in Espinoza v. Montana Department of Revenue, a case that challenges whether a scholarship fund underwritten by state tax credits can bar aid to children attending parochial schools. A group of Montana parents argue in the case that state laws barring public support for parochial schools are discriminatory.

The hearing came as school choice advocates prepared for a weeklong celebration of their victories in advancing such programs — as Monday marks the beginning of National School Choice Week. It also is the start of Catholic Schools Week.

Pennsylvania is among 37 states with so-called Blaine amendments that bar public support for religious schools.

State lawmakers here led the way around state Blaine amendments in 2001. That year, Pennsylvania lawmakers established a multimillion-dollar tax credit program that allowed businesses, and later individuals, to write off state tax bills in return for donations to scholarship funds at private schools.

Supporters have successfully maintained that the money does not represent public support for students attending religious or private schools because it never touches the public treasury, going instead directly to scholarship organizations.

Over the years, other states adopted the model.

Pennsylvania’s pool of tax credits has grown more than six fold over the years. This year, the state is foregoing $190 million in taxes — money that was diverted to the scholarship program even as lawmakers struggled to balance the budget.

State Rep. Mike Turzai, R-Bradford Woods, the outgoing speaker of the House and one of the foremost proponents of expanding the tax credit program, said the court’s decision to take up the Montana case was encouraging.

“I think the Supreme Court taking up this case is indicative that they find Blaine amendments anti-choice and discriminatory,” Turzai said. “A good decision could send a strong message that not only is school choice constitutional, but that it is really important to families.”

As recently as 2017 in Trinity Lutheran Church of Columbia v. Comer, the Supreme Court ruled that a Missouri program that barred a Lutheran daycare center from participating in a state grant program to enhance playgrounds was discriminatory.

Legal experts said the Supreme Court — which now includes five justices who attended Catholic schools — could go in several directions.

Nancy A. Hubley, Pittsburgh director of the Pennsylvania Education Law Center, said the court could issue a narrow ruling affecting only Montana, or it could go so far as ruling that Blaine amendments are unconstitutional. Such a ruling could open the door to public funding for private and parochial schools and have a major impact on how K-12 schools are funded.

“We are watching it closely. We continue to oppose such programs,” Hubley said.

She said calling tax credits anything but public money “is a legal fiction.”

In Montana, the state high court took a similar position when it was asked to rule on a decision that excluded students at 12 religious schools from participating in tax credit scholarships. The court threw out the entire Montana program.

Kendra Espinoza, a single mother with two daughters enrolled in the Stillwater Christian School in Kalispell, Mont., took issue with that decision, insisting such programs should support parental choice.

She is the lead plaintiff in the case now before the Supreme Court. Barring religious schools from such programs violates the equal protection clause of the U.S. Constitution, the lawsuit contends.

The New York Times reported that the court Wednesdays seemed receptive to arguments that barring religious schools from such programs could be construed as discriminatory.

The justices are expected to rule by the end of June, when the court adjourns for the summer.

Keystone take

In Pennsylvania, where tax credits underwrite scholarship funds at everything from pricey private prep schools to tiny religious academies, advocates say it is all about parental choice and enabling low- and middle-income parents to make such choices.

Amanda Giacobbi is PTO president at Queen of Angels Catholic School in North Huntingdon where her son, Joey, attends first grade. Both she and her husband, Joe, are the product of Catholic schools. She said they committed to finance a faith-based education for their children and are glad to see scholarship funds that have made a difference for a number of parents.

“The school is a wonderful community. I feel lucky to be there,” she said. “There is a wide variety of parents, and the school does a good job of making sure they get information about the scholarships.”

In the Greensburg Catholic Diocese, where parochial school enrollment declined by about one-third between the 2007-08 and 2017-18 academic years, officials are promoting such scholarships in recruitment campaigns.

Last year, a vigorous scholarship fund campaign culminated in the announcement that businesses and individuals had designated $1 million in tax credits for the diocese’s tax credit scholarship fund.

Availability of additional financial assistance has helped stabilize enrollment over the past two years, said Maureen Marsteller, superintendent of Catholic schools for the diocese.

“The goal now is to turn that stability into growth,” she said.

Ted Clater is executive director of the Keystone Christian Education Association, an organization that represents about 150 evangelical K-12 schools in Pennsylvania. He has seen families in those schools benefit from Pennsylvania’s tax credits. He likens the designation of tax credits to scholarship funds to senior citizens choosing to put a portion of their Social Security payments in church offering plates.

Sister Dale McDonald, director of public policy for the National Catholic Educational Association, has a similar take on such programs.

“In all of the programs, the validity of the program depends on the fact that the aid is given to the parent to decide what type of program to spend money on. Just like a Social Security check, no one tells you how to spend it,” she said.

McDonald and Clater said they’d welcome a court decision clarifying their position.

Public education advocates offer a different perspective.

David Broderic of the Pennsylvania State Education Association, the union that represents public school teachers, said his members worry about anything that might drain funds from public schools.

“Our overall view is the Pennsylvania Constitution requires the commonwealth to provide for a thorough and efficient system of public education,” he said. “In a time when many school districts feel they’re short on resources, the commonwealth’s priority should be on supporting public schools rather than diverting money to private schools.”