Amicus Curiae Brief — Kendra Espinoza, et al., Petitioners v. Montana Department of Revenue, et al.

NO. 18-1195

In the

Supreme Court of the United States

________________

KENDRA ESPINOZA, JERI ELLEN ANDERSON, and

JAMIE SCHAEFER,

v.

Petitioners,

MONTANA DEPARTMENT OF REVENUE, and GENE

WALBORN, in his official capacity as DIRECTOR OF

THE MONTANA DEPARTMENT OF REVENUE,

Respondents.

________________

On Writ of Certiorari to the

Montana Supreme Court

________________

BRIEF FOR AMICI CURIAE

CENTER FOR EDUCATION REFORM,

ET AL., IN SUPPORT OF PETITIONERS

(ADDITIONAL AMICI LISTED

ON INSIDE COVER)

________________

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

ERIN M. HAWLEY

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

September 18, 2019

ADDITIONAL AMICI CURIAE

Learn4Life

Power2Parents

Cristo Rey Network

Families Empowered

Foundation for Excellence in Education

Project 21

Jack Kemp Foundation

Parents for Educational Freedom in

North Carolina

Catholic Education Partners

Catholic Charities DC

American Legislative Exchange Council

Excellence Schools PA

Chris Stewart

Sharif El-Mekki

Dr. Howard Fuller

ii

CORPORATE DISCLOSURE STATEMENT

Amici are not-for-profit organizations and three

individuals. No amicus has a parent or subsidiary

organization, none is an issuer of stock, and no

publicly held corporation owns 10% or more of the

stock of any amicus.

iii

TABLE OF CONTENTS

CORPORATE DISCLOSURE STATEMENT ............ ii

TABLE OF AUTHORITIES ....................................... v

STATEMENT OF INTEREST ................................... 1

SUMMARY OF ARGUMENT .................................... 5

ARGUMENT ............................................................... 7

I.

Prohibiting Parents From Using Generally

Available Funds To Direct Their Children’s

Education Because A School Is Religiously

Affiliated Inflicts Direct And Significant

Injuries ................................................................. 7

A. Parents

Have

a

Constitutionally

Protected Liberty Interest to Pursue the

Best Educational Opportunity for Their

Children, Which Is Promoted By

Programs

Expanding

Educational

Options .......................................................... 7

B. Empowering Parents to Exercise Their

Constitutional Right to Direct Their

Children’s Education Results in Better

Schools

and

Better

Educational

Outcomes,

As

Numerous

Studies

Concerning

Brain

Science

And

Individual Learning Reinforce ................... 10

C. Denying Parents Their School of Choice

Because of its Religious Nature Injures

Parents and Children by Violating

Bedrock Constitutional Principles ............. 15

II. The State’s Interest In Avoiding Indirect

Funding Of Religiously Affiliated Institutions

Is Miniscule ....................................................... 17

iv

III. The Balance Of Interests Strongly Favors

The Constitutional Right Of Parents To

Direct

Their

Children’s

Education,

Consistent With Framing-Era Principles And

Contrary to the Principles Of The Blaine

Amendment Era ................................................ 21

CONCLUSION ......................................................... 27

v

TABLE OF AUTHORITIES

Cases

Agostini v. Felton,

521 U.S. 203 (1997)................................................ 18

Borough of Duryea v. Guarnieri,

564 U.S. 379 (2011)................................................ 20

Church of Lukumi Babalu Aye, Inc.

v. City of Hialeah,

508 U.S. 520 (1993)................................................ 16

Employment Division v. Smith,

494 U.S. 872 (1990).................................... 16, 17, 22

Garcetti v. Ceballos,

547 U.S. 410 (2006)................................................ 20

Locke v. Davey,

540 U.S. 712 (2004)................................................ 21

Meyer v. Nebraska,

262 U.S. 390 (1923).............................................. 8, 9

Mitchell v. Helms,

530 U.S. 793 (2000).......................................... 18, 25

Mueller v. Allen,

463 U.S. 388 (1983).................................... 18, 19, 21

Pierce v. Society of the Sisters of the

Holy Name of Jesus and Mary,

268 U.S. 510 (1925)............................................ 8, 15

Rosenberger v. Rectors and Visitors

of the University of Virginia,

515 U.S. 819 (1995)................................................ 20

Trinity Lutheran Church of

Columbia, Inc. v. Comer,

137 S. Ct. 2012 (2017)............................................ 16

vi

Troxel v. Granville,

530 U.S. 57 (2000).................................................... 7

Washington v. Glucksberg,

521 U.S. 702 (1997)............................................ 8, 16

Wisconsin v. Yoder,

406 U.S. 205 (1972).................................... 15, 16, 17

Witters v. Washington Dept. of

Servs. for the Blind,

474 U.S. 481 (1986)................................................ 19

Zelman v. Simmons-Harris,

536 U.S. 639 (2002)................................ 9, 17, 18, 19

Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993).................................................... 19

Regulation

5 C.F.R. § 950.110..................................................... 20

Other Authorities

4 Cong. Rec. (1875) ................................................... 26

Alliance for Catholic Education, Research on

the Case for Catholic Schools, University of

Notre Dame, available at

https://bit.ly/2m0eDYE .......................................... 12

Ashley Berner, Education for the Common

Good, EducationNext (Nov. 30, 2017)

available at https://bit.ly/2lOYDc5 ........................ 12

Ashley Berner, The Case for Educational

Pluralism in the U.S., Manhattan Institute

(July 11, 2019), available at

https://bit.ly/33wVMWq ......................................... 23

vii

Center for Education Reform, The

Disappointing Reality of American

Education, available at:

https://bit.ly/2kM9nrz ...................................... 10, 11

Charles L. Glenn, The American Model of

State and School (2012) ......................................... 24

Common School Movement, available at

https://bit.ly/2kOEiDv............................................ 23

Corey DeAngelis and Patrick J. Wolf, The

School Choice Voucher: A “Get Out of Jail”

Card?, University of Arkansas (Mar. 8,

2016) available at https://bit.ly/2kLZR7G ............ 12

Frederick Mark Gedicks, Reconstructing the

Blaine Amendments, 2 First Amend. L.

Rev. 85 (2004) ........................................................ 23

Jessica Bakeman, According to a New

Department of Education Study, Charter

Schools Outperform Traditional Public

Shows, Center for Education Reform

(Apr. 17, 2017) available at

https://bit.ly/2kPjM5R ........................................... 13

John C. Jeffries, Jr. & James E. Ryan, A

Political History of the Establishment

Clause, 100 Mich. L. Rev. 279 (2001) ........ 23, 24, 25

Joseph P. Viteritti, Blaine’s Wake: School

Choice, The First Amendment, and State

Constitutional Law, 21 Harv. J.L. & Pub.

Pol’y 657 (1998) ...................................................... 24

Kyle Duncan, Secularism’s Laws: State

Blaine Amendments and Religious

Persecution, 72 Fordham L. Rev. 493 (2003) ........ 24

viii

Mark Edward DeForrest, An Overview and

Evaluation of State Blaine Amendments:

Origins, Scope, and First Amendment

Concerns, 26 Harv. J.L. & Pub. Pol’y 551

(2003) ...................................................................... 26

Mary Jo Madda, There’s No Such Thing as

Average’: Todd Rose on Brain Science and

the Limitations of Standards, EdSurge

(Oct. 26, 2016) available at

https://bit.ly/2ePLt7y ............................................. 13

Michael B. Horn, Why Personalized Learning

is Imperative, Education Elements (Jun.

22, 2016) available at

https://bit.ly/28UgdB3 ..................................... 13, 14

Non-Sectarianism Reconsidered, 18 J.L. &

Pol. 65 (2002) ......................................................... 24

Philip C. Hamburger, Separation of Church

and State (2002) ............................................... 24, 25

Richard A. Baer, Jr., The Supreme Court’s

Discriminatory Use of the Term “Sectarian,”

6 J.L. & Pol. 449 (1990) ......................................... 25

Stephen Macedo, Diversity and Distrust:

Civic Education in a Multicultural

Democracy (2000) ................................................... 23

Steven K. Green, The Bible, the School, and

the Constitution (2012) .......................................... 25

Steven K. Green, The Blaine Amendment

Reconsidered, 36 Am. J. Legal Hist. 38

(1992) .......................................................... 24, 25, 26

ix

Tim Keller, As School Choice Programs

Grow, We Must Debunk Myths About How

Choice Works, HomeRoom (Jan. 23, 2019)

available at https://bit.ly/2kmWZ12...................... 12

Wayne J. Urban & Jennings L. Wagoner Jr.,

American Education: A History

(2nd ed. New York: McGraw-Hill 2000)................ 23

STATEMENT OF INTEREST 1

The Center for Education Reform (“CER”),

founded in 1993, is the nation’s leading authority on

advancing education opportunity and innovation in

American education. Its mission is to expand

educational opportunities that lead to improved

economic outcomes for all Americans, particularly our

youth, ensuring that the conditions are ripe for

innovation, freedom, and flexibility throughout U.S.

education.

A non-profit research and support

organization, CER creates opportunities for, and

challenges obstacles to, better education for America’s

communities by providing support and guidance to

parents and teachers, community and civic groups,

policymakers, grassroots leaders, and all other

interested citizens who are working to bring

fundamental reforms to their schools. CER’s work

enables broad and lasting quality educational

opportunities that produce high standards, enhance

accountability, and protect parents’ rights to direct

educational opportunities for their children, securing

the future prosperity of all citizens, regardless of the

circumstances into which they are born.

In CER’s experience, the factor most closely

related to positive educational outcomes is parents’

ability to select the school that their children attend.

1 Pursuant to Supreme Court Rule 37.6, amici curiae state that

no counsel for any party authored this brief in whole or in part

and that no entity or person, aside from amici curiae, their

members, and their counsel, made any monetary contribution

toward the preparation or submission of this brief. Pursuant to

Supreme Court Rule 37.3, counsel of record for all parties have

consented to this filing in letters on file with the Clerk’s office.

2

Giving parents that opportunity not only frees parents

and their children from the tyranny of the zip code; it

creates better educational opportunities for all

students by leveraging the dynamics of consumer

opportunity and provider competition to infuse

accountability and quality into the educational

system. Allowing parents to educate their children as

they see fit fosters parental involvement and high

expectations, provides educational opportunity where

none existed before, and promotes the rights of

parents and the best interests of children over

bureaucratic inertia.

CER is joined here by other amici who are

similarly committed to protecting the constitutional

rights of families to direct the education of their

children. Foundation for Excellence in Education

focuses on educational opportunity, innovation, and

quality by increasing student learning, advancing

equity, and readying graduates for college and career.

Learn4Life is a charter school organization serving

over 50,000 at-risk high school students. Families

Empowered is a parent service organization, annually

connecting over 60,000 families with school options

that work for their particular children.

Project 21 is a black leadership network created

in 1992 to highlight the diversity of black opinion on

public policy, including education. Participants in

Project 21 activities are black professionals who share

the common goal of making the nation a better place

for all Americans. The Jack Kemp Foundation is a

nonprofit organization devoted to developing,

engaging, and recognizing exceptional leaders who

champion the American Idea.

The American

3

Legislative Exchange Council is the nation’s largest

non-partisan individual membership association of

state legislators.

Excellence Schools PA, Parents for Educational

Freedom in North Carolina, and Power2Parent are

statewide educational advocacy organizations.

Excellence Schools PA advocates for educational

options in Pennsylvania and was founded on the belief

that all students, regardless of race or socioeconomic

status, have the right to a high-quality education.

Parents for Educational Freedom in North Carolina

advocates for quality educational options and educates

North Carolinians about those options. Power2Parent

is a Nevada parents’ organization that informs,

organizes, and mobilizes community members to

protect parental rights.

Catholic Education Partners serves the Catholic

community by advancing public policy that empowers

families and children to enjoy the benefits of a

Catholic education. Catholic Charities DC is a

private, non-profit agency operating 59 programs

throughout the Archdiocese of Washington, serving

over 140,000 people a year. The Cristo Rey Network

partners with educators, businesses, and communities

to deliver a college- and career-preparatory education

in the Catholic tradition for students with limited

economic resources, integrating rigorous academic

curricula with four years of professional work

experience and support to and through college.

Three individual amici are leaders in the

educational policy space.

Chris Stewart is an

educational leader writer, essayist, and speaker based

in Minnesota. Stewart founded the 8 Black Hands

4

podcast, and his Citizen Ed Blog is followed by

thousands nationally. Sharif El-Mekki is a career

educator who founded the Philly’s 7th Ward blog,

which works to find educational solutions for all

students, particularly African-American children. ElMekki is a member of the 8 Black Hands podcast and

served on the Mayor’s Commission on African

American Males across two administrations. Dr.

Howard Fuller is a long-time community activist,

former Superintendent of Milwaukee Public Schools,

author, and founder of the Institute for

Transformation of Learning at Marquette University.

Amici believe that the Montana scholarship

program at issue in this case is precisely the sort of

program that enhances educational outcomes—not

just for the low-income parents and children who

utilize it, but for all students who benefit from

increased competition and accountability in

Montana’s educational system.

Affirming the

Montana Supreme Court’s decision striking down this

neutral program would do incalculable damage to the

rights of parents and children, all for the negligible

benefit of avoiding the indirect funding of religiously

affiliated institutions—an interest this Court has

repeatedly regarded as minimal. Accordingly, amici

urge this Court to reverse the decision below.

5

SUMMARY OF ARGUMENT

This Court has long held that the liberty protected

by the Due Process Clause includes the constitutional

right of parents to direct the education and upbringing

of their children.

Research demonstrates that

empowering parents to exercise that constitutional

right by selecting the school they consider most

appropriate for their children improves educational

outcomes for all students.

The reason is

straightforward: The science of how students learn

establishes what most parents know intuitively—

namely, that learning is a highly individual process.

Because parents have the most knowledge about their

children and their particular learning styles, which

may vary substantially even among children raised in

the same household, they can best determine the

optimal pedagogical fit for their children when their

right to direct their children’s education is protected

and facilitated. Because of financial constraints or

longstanding housing patterns, however, many

parents can only realistically exercise that right with

government assistance. 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.

In stark contrast to these substantial injuries to

individual rights, the government has only a minimal

interest in avoiding indirect funding of religiously

6

affiliated entities. This Court has long distinguished

between the greater state interest in avoiding direct

funding of religious entities—although even that is

permitted in some contexts—and the far weaker state

interest in avoiding indirect funding of religious

entities. So miniscule is the state interest in ensuring

that government funds do not indirectly end up with

religiously affiliated organizations that this Court has

never found unconstitutional a government program

where religiously affiliated entities obtain state funds

only as a result of choices by private individuals. This

negligible state interest mirrors the reduced state

interest in other circumstances involving indirect

government aid, such as where the government

provides a neutral means for third parties to engage

in speech or other expression.

Weighing these competing interests, the balance

plainly favors respecting parents’ rights, particularly

in this case, where two distinct layers of private choice

dictate the destination of government funds. That

balance, furthermore, is consistent with Framing-era

principles. Minimizing the state’s ability to restrict

parental decisionmaking when it comes to education

reestablishes the traditional pluralism and limited

governmental involvement in education that prevailed

in the early Republic. The Blaine Amendment era

marked a deviation from those principles by seeking

to cement a Protestant educational homogeneity that

the Framers would not recognize and that modern-day

principles reject. To restore the Framers’ vision,

reassert parents’ constitutional liberty interest in

directing their children’s upbringing, and reaffirm the

core First Amendment interest in free exercise, this

Court should reverse the decision below.

7

ARGUMENT

I.

Prohibiting Parents From Using Generally

Available Funds To Direct Their Children’s

Education Because A School Is Religiously

Affiliated Inflicts Direct And Significant

Injuries.

The Montana Supreme Court’s decision denies

parents the opportunity to participate in a neutral,

generally available program intended to benefit the

state’s most at-risk children and to improve

educational outcomes. That result inflicts significant

and direct injuries on parents and their children.

When a state prevents parents from choosing the best

educational opportunity for their children, parents are

unable to fully exercise their well-established

constitutional right to direct the education of their

children. Their children are also directly injured by

the lack of educational opportunity. That these

injuries derive from the mere fact that a family’s

desired school has a religious affiliation only

underscores the gravity and caprice of the harm.

A. Parents

Have

a

Constitutionally

Protected Liberty Interest to Pursue the

Best Educational Opportunity for Their

Children, Which Is Promoted By

Programs

Expanding

Educational

Options.

The constitutional liberty interest of parents to

direct the education of their children is “perhaps the

oldest of the fundamental liberty interests recognized

by this Court.” Troxel v. Granville, 530 U.S. 57, 65

(2000). Nearly a century ago, in Meyer v. Nebraska,

this Court held that the “liberty” protected by the Due

8

Process Clause includes the right of parents “to control

the education” of their children. 262 U.S. 390, 399-401

(1923). The Court expounded upon that principle in

Pierce v. Society of the Sisters of the Holy Names of

Jesus and Mary, a case which upheld the right of

parents to send their children to private, religiously

affiliated schools. 268 U.S. 510, 534-35 (1925). Pierce

held that the “liberty of parents” includes the right “to

direct the upbringing and education of children under

their control.” Id. As the Court explained, “[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.” Id. at 535. Thus, “[i]n

a long line of cases,” this Court has held that “the

‘liberty’ specially protected by the Due Process Clause

includes the right[] … to direct the education and

upbringing of one’s children.”

Washington v.

Glucksberg, 521 U.S. 702, 720 (1997).

For many low-income families, however, parents’

ability to “direct the education and upbringing of

[their] children” is constrained by financial restraints

and the unfortunate but real connection between the

price tag of a house and the quality of education a child

receives. Accordingly, the critical liberty interest of

pursuing the most desirable education for one’s child

is promoted by programs that expand the options for

parents to send their children to schools beyond their

zip code—whether they take the form of vouchers,

educational savings accounts, or tax credit scholarship

programs.

This Court recognized as much in Zelman v.

Simmons-Harris, a case that involved 75,000 children

9

enrolled in the Cleveland City School District—a

district that failed to meet any of the 18 state

standards for minimal acceptable performance. 536

U.S. 639 (2002). Only 1 in 10 ninth graders passed a

basic proficiency exam and more than two-thirds of

high school students either failed or dropped out. Id.

at 644. The state auditor found the school system to

be suffering a “crisis that is perhaps unprecedented in

the history of American education.” Id. Hardest hit

were children from low-income and minority families,

who were unable to move to wealthier communities

with better schools. Id.

To address Cleveland’s failing schools, Ohio

enacted a scholarship program that provided tuition

assistance for students to “attend a participating

public or private school of their parent’s choosing.” Id.

at 645. This Court upheld against an Establishment

Clause challenge Ohio’s program in part because it

allowed parents to make a better educational choice

for their child.

See id.

Facilitating parents’

opportunities to select a school that is best-suited for

their children thus enables parents to exercise their

constitutionally protected liberty interest to “control

the education” of their children. Meyer, 262 U.S. at

401; see Zelman, 268 U.S. at 534-35.

10

B. Empowering Parents to Exercise Their

Constitutional Right to Direct Their

Children’s Education Results in Better

Schools

and

Better

Educational

Outcomes,

As

Numerous

Studies

Concerning

Brain

Science

And

Individual Learning Reinforce.

Not only do parents possess a constitutional right

to direct the education of their children; facilitating

this right leads to better schools and better

educational outcomes for parents and children, as

recent studies underscore.

The unfortunate truth is that, for an increasing

number of working families in the United States,

traditional school districts are not working. The data

from a 2017 National Assessment of Educational

Progress (NAEP) study are disturbing. Only 36% of

public school 8th grade students tested at or above

proficient in reading. Center for Education Reform,

The Disappointing Reality of American Education, at

4, available at: https://bit.ly/2kM9nrz. In math, the

8th grade proficiency level was even lower at 34%. Id.

The study also found a six-year gap in reading

achievement between the nation’s poorest and

wealthiest students. Id.

The implications are serious. According to the

Department of Justice, “the link between academic

failure and delinquency, violence, and crime is welded

to reading failure.” Id. at 6. An astounding 85 percent

of juveniles who “interface with the juvenile court

system are functionally illiterate, and over 70 percent

of inmates in America’s prisons cannot read above a

fourth-grade level.” Id.

11

Further, according to the Programme for

International Student Assessment (“PISA”), the

United States has one of the largest achievement gaps

and one of the most “deeply inequitable” education

systems in the industrialized world. Id. at 8-9. The

United States is one of only five OECD countries that

does not provide government funding for privately

managed secular and sectarian schools. Id.

In 2018, an estimated 43% of American children

were growing up in low-income families. Id. at 3.

Thus, nearly half of American families do not have the

resources needed to cover basic expenses, much less

send their children to their school of choice. Id.

Providing options outside of a family’s zip code breaks

the unfortunate link between the home a family can

afford and the quality of education they can give their

children. Providing choices also helps parents tailor

their child’s school to the particular child’s learning

needs and styles.

After all, parents who are

empowered to make educational choices—whether by

government programs or their own resources—do not

necessarily make uniform decisions about their

children’s education. They may leave one child in

public school, while a second child attends private

school, or select different non-public options based on

each child’s learning styles and needs.

Research has shown that educational choice

programs “improve academic outcomes … positively

impact graduation rates, college enrollment, civic

engagement, crime rates, and improve parental and

student satisfaction.” Tim Keller, As School Choice

Programs Grow, We Must Debunk Myths About How

Choice Works, HomeRoom (Jan. 23, 2019) available at

12

https://bit.ly/2kmWZ12. It has likewise confirmed

that private schools “often narrow [the] academic

achievement gaps, create social capital, and foster

democratic behavior.” Ashley Berner, Education for

the Common Good, EducationNext (Nov. 30, 2017)

available at https://bit.ly/2lOYDc5.

And it has

demonstrated that religiously affiliated schools in

particular have a positive impact on student

achievement, attendance, and civic engagement.

Alliance for Catholic Education, Research on the Case

for Catholic Schools, University of Notre Dame,

available at https://bit.ly/2m0eDYE.

Providing options among schools also helps

students attend safer schools and avoid bullying and

gang activity. A University of Arkansas study found

that private school attendees were half as likely to

commit felonies and misdemeanors as their local

public school colleagues. Corey DeAngelis and Patrick

J. Wolf, The School Choice Voucher: A “Get Out of Jail”

Card?, University of Arkansas (Mar. 8, 2016)

available at https://bit.ly/2kLZR7G.

Similarly, studies from the University of

Arkansas show that charter schools regularly

outperform their public counterparts, even with less

funding. In 2015-2016, for example, Florida’s charter

schools had smaller racial achievement gaps and

students made greater learning gains and performed

better on state exams than their traditional public

school peers in 65 out of 77 comparisons. Jessica

Bakeman, According to a New Department of

Education Study, Charter Schools Outperform

Traditional Public Shows, Center for Education

13

Reform

(Apr.

17,

https://bit.ly/2kPjM5R.

2017)

available

at

Decades of brain science reinforce and help

explain the reality that educational outcomes are

improved when parents have the opportunity to fully

exercise their constitutional right to direct their

children’s education. Research into the science of

learning establishes what all parents know

intuitively: every child learns differently. There is

simply no one-size-fits-all model when it comes to

learning. In fact, research shows that “[e]ach child

has different learning needs at different times.”

Michael B. Horn, Why Personalized Learning is

Imperative, Education Elements (Jun. 22, 2016)

available at https://bit.ly/28UgdB3. As Todd Rose,

director of the Mind, Brain and Education program at

the Harvard Graduate School of Education, explains,

there is no such thing as an “average” brain; every

person’s brain operates differently. Mary Jo Madda,

There’s No Such Thing as Average’: Todd Rose on

Brain Science and the Limitations of Standards,

EdSurge

(Oct.

26,

2016)

available

at

https://bit.ly/2ePLt7y. A child’s individual learning

style stems from the “unique way[]” that his or her

brain “retrieve[s] information and create[s] memory.”

Id.

The scientific research into how children learn

underscores the critical importance of parent-directed

educational opportunity. Universal education in the

United States was originally modeled after factories.

See Horn, Why Personalized Learning is Imperative.

In that still-extant industrialized model, students are

batched into classrooms based upon age and taught

14

the same material at the same pace. Id. Despite the

best efforts of teachers, the standardization of the way

students are taught makes tailoring lessons to each

child in a 20 to 35 student classroom impossible. See

id. It also creates learning gaps that later return to

haunt students. Id. A school system that confines

students to one progression of learning will not

optimize learning for any student, let alone for

students with learning styles and needs that differ

from the mean.

Protecting and facilitating the right of parents to

direct the educational outcomes of children allows for

critically needed individualization of educational

options to meet the needs of individual students. It is

no surprise that parents with multiple children who

are fully empowered to choose—whether by their own

resources or government programs—do not always

choose the same educational path for each child. They

may send one to private school, one to the local public

school, and one to a specialized academy. Single-sex

education may be the right path for one child, and a

science focus the better path for a sibling. It is also no

surprise that empowering parents to make such

choices produces better educational outcomes, because

parents best understand their children’s individual

learning styles. The science behind how students

learn thus validates that when parents exercise their

constitutional right to direct their children’s education

by choosing among a range of schools, better

educational outcomes are the result.

In short, the data on the improved outcomes that

come with parent-directed education as well as

decades of brain science confirm what common sense

15

suggests.

When parents are given options for

schooling that upend the tyranny of the zip code and

facilitate the exercise of their constitutional right to

direct and control the education of their children,

educational diversity is enhanced and better

educational outcomes are achieved.

C. Denying Parents Their School of Choice

Because of its Religious Nature Injures

Parents and Children by Violating

Bedrock Constitutional Principles.

Given this Court’s repeated recognition of

parents’ constitutional right to control their children’s

education,

denying

parents

their

preferred

educational option simply because their desired school

has a religious affiliation inflicts direct and significant

injury on parents and children. As this Court has long

held, a State may not impinge on “the traditional

interest of parents with respect to the religious

upbringing of their children” so long as the parents

prepare them for additional obligations. Wisconsin v.

Yoder, 406 U.S. 205, 214 (1972) (quoting Pierce, 268

U.S. at 535). The state’s interest in educating its

citizens must yield to the parent’s fundamental liberty

interest in reasonably controlling that education. See

id.

It is no answer to say that parents may choose to

send their children to other private schools, so long as

they are not religiously affiliated. The state may not

limit a parent’s choice of educational options to secular

ones. As this Court has recognized, “the values of

parental direction of the religious upbringing and

education of their children in their early and formative

years have a high place in our society.” Id. at 213-14.

16

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. See

Glucksberg, 521 U.S. at 720.

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.’” Trinity Lutheran Church of

Columbia, Inc. v. Comer, 137 S. Ct. 2012, 2019 (2017)

(quoting Church of Lukumi Babalu Aye, Inc. v. City of

Hialeah, 508 U.S. 520, 533, 542 (1993)). Religious

discrimination is particularly pernicious when it

intersects with a fundamental liberty interest like

directing children’s education, as this Court

recognized in Employment Division v. Smith, 494 U.S.

872 (1990).

There, as examples of “the First

Amendment bar[ring] application of a neutral,

generally applicable law to religiously motivated

action,” the Court highlighted cases that involved “the

Free Exercise Clause in conjunction with other

constitutional protections,” including “the right of

parents … to direct the education of their children.”

Id. at 872, 881 (citing Yoder and Pierce). The Court

explicitly affirmed that “when the interests of

parenthood are combined with a free exercise claim …

17

more than merely a ‘reasonable relation to some

purpose within the competency of the State’ is

required to sustain the validity of the State’s

requirement under the First Amendment.” Id. at 881

n.1 (quoting Yoder, 406 U.S. at 233).

This case likewise implicates “the interests of

parenthood … combined with a free exercise claim.”

Both interests trigger constitutional protections, and

both interests are directly and significantly infringed

when parents are denied the ability to direct their

child’s education simply because the school of their

choosing is religiously affiliated.

II. The State’s Interest In Avoiding Indirect

Funding

Of

Religiously

Affiliated

Institutions Is Miniscule.

In stark contrast to the core liberty and First

Amendment interests of parents to direct their

children’s

education

free

from

religious

discrimination, the state’s interest in preventing the

indirect funding of religiously affiliated entities is

minimal. This Court has long recognized a difference

between direct and indirect uses of government funds

and underscored the government’s attenuated interest

in the latter. For example, the Court’s decisions “have

drawn a consistent distinction between government

programs that provide aid directly to religious schools”

and programs where “government aid reaches

religious schools only as a result of the genuine and

independent choices of private individuals.” Zelman,

536 U.S. at 649. The former require an evaluation of

criteria that include whether the government “acted

with the purpose of advancing or inhibiting religion”

and whether the direct aid “has the ‘effect’ of

18

advancing or inhibiting religion.” Agostini v. Felton,

521 U.S. 203, 222-23 (1997); see also Mitchell v. Helms,

530 U.S. 793, 807-08 (2000) (plurality); id. at 836-37

(O’Connor, J., concurring in the judgment). 2 The

latter, however, simply “do[] not offend the

Establishment Clause,” Zelman, 536 U.S. at 663,

because there is no danger that a reasonable observer

would attribute any endorsement of religion to the

State. In such cases, any “incidental advancement of

a religious mission, or the perceived endorsement of a

religious message, is reasonably attributable to the

individual recipient, not to the government.” Id. at

652.

Accordingly, this Court has repeatedly held that

where funds flow indirectly, the government has a

substantially reduced interest in how recipients of

government aid use those funds. In Mueller v. Allen,

463 U.S. 388 (1983), for instance, the Court rejected

an Establishment Clause challenge to a Minnesota

program authorizing tax deductions for private school

tuition even though over 90% of the program’s

beneficiaries were parents of children in religious

schools. This Court held that where “public funds

become

available

only

as

a

result

of

numerous … choices of individual parents of schoolage children,” no “imprimatur of State approval” can

be deemed conferred on religion. Id. at 399; see also

Witters v. Washington Dept. of Servs. for the Blind, 474

U.S. 481 (1986); Zobrest v. Catalina Foothills Sch.

2 Even then, the Court has upheld against Establishment

Clause challenge programs providing “government aid that

directly assists the educational function of religious schools.”

Agostini, 521 U.S. at 225.

19

Dist., 509 U.S. 1 (1993). Indeed, because indirect

expenditures are by definition the result of the

intervening decisions of third parties, this Court has

“never found a program of true private choice to offend

the Establishment Clause.” Zelman, 536 U.S. at 653

(emphasis added).

This Court’s Establishment Clause cases speak

directly to the lack of a strong government interest in

the indirect destination of government funds. Where

a state program, “[b]y according parents freedom to

select a school of their choice … ensures that

[government aid] will be present in a sectarian school

only as a result of the private decision of individual

parents,” the State has a minimal interest in that flow

of funds. Zobrest, 509 U.S. at 10. “The historic

purposes of the [Establishment] [C]lause simply do

not encompass the sort of attenuated financial benefit,

ultimately controlled by the private choices of

individual parents, that eventually flows to parochial

schools from the neutrally available tax benefit at

issue in this case.” Mueller, 463 U.S. at 400.

The Court has recognized the distinction between

direct and indirect uses of government funds—and the

state’s greater interest in the former and attenuated

interest in the latter—in other contexts. For example,

“a State may issue a paycheck to one of its employees,

who may then donate all or part of that paycheck to a

religious institution, all without constitutional

barrier; and the State may do so even knowing that

the employee so intends to dispose of his salary.”

Witters, 474 U.S. at 486-87. The indirect use of

government funds toward religious organizations does

not implicate the government’s core interests, and

20

thus the government has a minimal interest in

policing the spending decisions of its employees. See

5 C.F.R. § 950.110 (guaranteeing the eligibility of

religious organizations to participate in the Combined

Federal Campaign).

Along similar lines, the government has a distinct

interest in regulating the content of its employees’

speech and conduct especially when they address

matters within their job description. See, e.g., Garcetti

v. Ceballos, 547 U.S. 410, 418-19 (2006).

The

government “has a substantial interest in ensuring

that all of its operations are efficient and effective,”

which “may require broad authority to supervise the

conduct of public employees” that outweighs ordinary

First Amendment protections. Borough of Duryea v.

Guarnieri, 564 U.S. 379, 386 (2011). But where the

government merely provides a neutral means for third

parties to speak—by providing a public forum or

funding for the expression of views—the government’s

interest in regulating speech is substantially

diminished. See, e.g., Rosenberger v. Rectors and

Visitors of the University of Virginia, 515 U.S. 819,

829-30 (1995). Speech by the government itself or

government

employees

implicates

important

government interests that are simply not present

when the government provides a forum for speech by

others. There is no such thing as an indirectgovernment speech doctrine because the intervening

choices of individual speakers eliminates any

plausible inference that the speech is attributable to

the government. Once speech and aid is no longer

directly attributable to the government, its interest is

truly minimal.

21

Any such governmental interest is particularly

miniscule in this case, moreover, because the aid

provided under Montana’s program is doubly indirect.

First, individuals make a donation to a nonprofit

scholarship organization, receiving a tax credit in

return. Second, the scholarship organization gives

scholarships to parents who wish to send their

children to a qualified school. The indirect aid to

religiously affiliated organizations thus occurs “only

as a result of numerous … choices” by private

individuals at two different stages. Mueller, 463 U.S.

at 399. Under such circumstances, so long as the

funds are used for the neutral end served by

Montana’s

program—expanding

educational

opportunity and enhancing educational outcomes—

the government’s interest in preventing those funds

from reaching their destination because of their

religious nature is not just minimal but invidious.

III. The Balance Of Interests Strongly Favors

The Constitutional Right Of Parents To

Direct

Their

Children’s

Education,

Consistent With Framing-Era Principles

And Contrary to the Principles Of The

Blaine Amendment Era.

In a competition between, on the one hand,

parents’ constitutional rights to direct their children’s

education free from religious constraints and, on the

other hand, the government’s interest in regulating

the indirect use of state funds, the balance plainly

favors respecting parents’ rights. See Locke v. Davey,

540 U.S. 712, 725 (2004) (comparing the “State’s

interest in not funding the pursuit of devotional

degrees” with the “relatively minor burden” on

22

individuals from “the exclusion of such funding”). As

explained, parents have a long-established and

repeatedly recognized constitutional liberty interest in

directing the education of their children, and an

equally compelling interest in freely exercising their

religious beliefs.

This Court has specifically

recognized the potency of those two interests when

“combined.” Smith, 494 U.S. at 881-82 & n.1. Denying

parents the opportunity to direct their children’s

education simply because of religion directly and

substantially infringes upon those interests. On the

other side of the ledger, the state has a minimal

interest in regulating the destination of indirect

funding, and even less so here, where two distinct

stages of private choice intervene between

government aid and the recipients of that aid.

This balance not only is borne out by case law and

common sense; it is consistent with Framing-era

principles. Minimizing the state’s ability to restrict

parental decisionmaking when it comes to education

restores the traditional pluralism and limited

governmental involvement in education that prevailed

in the early Republic. The Blaine Amendment era

marked a deviation from those principles and should

not guide sound constitutional decisionmaking.

Traditionally, parents had broad latitude to

pursue the best educational option for their children

without undue state interference. At the country’s

inception, education was generally considered a

private, family matter. As Virginia’s governor, Sir

William Berkeley, wrote in 1671, Virginians were

taking “the same course that is taken in England out

of towns; every man according to his own ability in

23

instructing his children.” Wayne J. Urban & Jennings

L. Wagoner Jr., American Education: A History 22-23

(2nd ed. New York: McGraw-Hill 2000). And while

many of the Founders recognized the critical

importance of education—another Virginia Governor,

Thomas Jefferson, proposed free public education in

1779—the new nation emerged from the eighteenth

century with a “patchwork pattern of schools,” most

established by private schoolmasters or religious

groups. Common School Movement, available at

https://bit.ly/2kOEiDv.

It was not until the 1830s that the common school

movement—i.e., public schooling—began in earnest.

At first, public schools were “educationally plural,

reflecting the local populations beliefs and values.”

Ashley Berner, The Case for Educational Pluralism in

the U.S., Manhattan Institute (July 11, 2019),

available at https://bit.ly/33wVMWq.

Gradually,

however, public schools began to reflect the thenprevailing Protestant hegemony in public life. A

general Protestant morality was widely seen as a

necessary prerequisite to the maintenance of the

American constitutional republic. See Frederick Mark

Gedicks, Reconstructing the Blaine Amendments, 2

First Amend. L. Rev. 85, 91-92 (2004). “Many people

viewed Protestantism as inseparable from the

American republican idea,” Stephen Macedo, Diversity

and Distrust: Civic Education in a Multicultural

Democracy 57 (2000), even as synonymous with

“Americanism,” John C. Jeffries, Jr. & James E. Ryan,

A Political History of the Establishment Clause, 100

Mich. L. Rev. 279, 297 (2001) (quotation marks

omitted).

24

The common schools soon served as important

tools for inculcating civic Protestant values in their

students.

Noah Feldman, Non-Sectarianism

Reconsidered, 18 J.L. & Pol. 65, 72-73 (2002). The

common schools’ curricula “evidenced a ‘panProtestant compromise,’” Kyle Duncan, Secularism’s

Laws: State Blaine Amendments and Religious

Persecution, 72 Fordham L. Rev. 493, 503 (2003)

(quoting Jeffries & Ryan, supra, at 299), the

centerpiece of which was reading from a Protestant

version of the Bible, see Joseph P. Viteritti, Blaine’s

Wake: School Choice, The First Amendment, and State

Constitutional Law, 21 Harv. J.L. & Pub. Pol’y 657,

666 (1998), and reciting Protestant prayers and

hymns, Christopher C. Lund, The New Victims of the

Old Anti-Catholicism, 44 Conn. L. Rev. 1001, 1006

(2012).

The wave of Catholic immigration beginning in

the mid-nineteenth century challenged this

homogenized Protestant public education and sought

to reintroduce plurality to the system. See Philip C.

Hamburger, Separation of Church and State 201-02

(2002). Unsurprisingly, Catholics frequently declined

to simply accept the openly Protestant instruction

dominating the common schools. Protestants saw the

Catholic refusal to participate in public school

practices like Bible reading, hymn singing, and prayer

as a failure to assimilate and a rejection of core values

of American civic culture. See id. at 211; Charles L.

Glenn, The American Model of State and School 15460 (2012). Catholics established their own schools and

lobbied for a share of common school funds.

See Steven K. Green, The Blaine Amendment

Reconsidered, 36 Am. J. Legal Hist. 38, 42 (1992).

25

Although initially rebuffed, Catholics were gradually

able to gain access to funding or excise Protestant

practices from public schools in cities with large

Catholic populations. Id. at 44-47.

These efforts were met frequently with a

prejudice and nativism endemic of the broader antiCatholic brand of politics that had emerged in

response to swelling Catholic numbers. See generally

Hamburger, supra, at 201-40; see also Jeffries & Ryan,

supra, at 301. These politics reached a fevered pitch

after the Civil War. In 1875, President Grant

delivered an address denouncing the forces of

“superstition” and calling for citizens to “resolve that

not one dollar … be applied to the support of any

sectarian school[s].” Duncan, supra, at 507 (quotation

marks and emphasis omitted). The reference to

“sectarian school[s]” had an unmistakable public

meaning to Grant’s audience. It meant Catholic—the

antithesis of the “nonsectarian” Protestant public

schools of the era. See Jeffries & Ryan, supra, at 301;

Hamburger, supra, at 298-99, 307; cf. Mitchell,

530 U.S. at 828 (plurality opinion); Zelman, 536 U.S.

at 721 (Breyer, J., dissenting); Richard A. Baer, Jr.,

The Supreme Court’s Discriminatory Use of the Term

“Sectarian,” 6 J.L. & Pol. 449 (1990).

Grant also called for a constitutional amendment

forbidding funding for “sectarian” schools. Steven K.

Green, The Bible, the School, and the Constitution

192-93 (2012). Shortly thereafter, Representative

James Blaine of Maine obliged and introduced an

amendment, which read in relevant part:

[N]o money raised by taxation in any State for

the support of public schools, or derived from

26

any public fund therefor, 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). The House approved the

amendment, but it died in the Senate as Senators

opposing it assailed its patently anti-Catholic purpose

and effect. Green, Blaine Reconsidered, supra, at 39.

Although Blaine’s Amendment failed in Congress,

advocates of such measures turned to the states.

Within a year of its defeat, fourteen states had

adopted measures forbidding public funding for

“sectarian” schools, and by the end of the nineteenth

century, thirty states had adopted such provisions.

Mark Edward DeForrest, An Overview and

Evaluation of State Blaine Amendments: Origins,

Scope, and First Amendment Concerns, 26 Harv. J.L.

& Pub. Pol’y 551, 573 (2003).

The Blaine Amendments thus marked an attempt

to crystallize a particularly odious brand of

homogeneity that the Framers would never have

recognized: a Protestant educational hegemony. They

did so through the particularly odious means of

divvying up society according to religion, barring aid

for any “sectarian” establishment (understood to mean

Catholic). And by prohibiting funding—even indirect

funding—for “sectarian” entities, they had the

particularly odious effect of constraining parents’

ability to exercise their constitutional rights to direct

the upbringing and education of their children.

27

The Blaine Amendment era was a deviation from

Founding-era principles, and it is a deviation from

present-day principles. State prohibitions on indirect

funding of religiously affiliated organizations should

not be permitted to trump the fundamental promise of

neutrality enshrined in the First Amendment or to

constrain parents’ fundamental liberty interest in

directing the education of their children. Vindicating

the rights of parents and children to be free of stateinflicted

religious

discrimination

creates

a

constitutional and educational environment that the

Framers would recognize and applaud. Accordingly,

the Court should reverse the Montana Supreme

Court’s decision.

CONCLUSION

For the foregoing reasons, the Court should

reverse the decision below.

Respectfully submitted,

PAUL D. CLEMENT

Counsel of Record

GEORGE W. HICKS, JR.

ERIN M. HAWLEY

KIRKLAND & ELLIS LLP

1301 Pennsylvania Ave., NW

Washington, DC 20004

(202) 389-5000

paul.clement@kirkland.com

September 18, 2019