In Espinoza v. Montana Department of Revenue, 207 L. Ed. 2d 679 (2020), the U.S. Supreme Court held that if a state offers an educational choice program, it cannot bar a religious schools based solely on their religious character. Over fifteen years ago, the Court had held that the Establishment Clause did not preclude religious alternatives in educational choice [Zelman v. Simmons-Harris, 536 U.S. 639 (2002)] Now, under Espinoza, the Court held that, under the free exercise clause, states could not bar religious school choice as a matter of policy against public aid to religious institutions.

While the Court held that religious schools may not be excluded from programs, it did not fully resolve the issue of funding provided by these programs.  The Court did not resolve whether a state may, consistent with the Free Exercise Clause, prohibit the aid provided by an educational choice program from being used to procure a religious education.  The Court specifically distinguished the case of Locke v. Davey, where the Court upheld a state’s decision to not publicly fund a religious instruction under its public scholarship program. The majority in Espinoza found that the wholesale exclusion of a religious school for “being” religious was distinguishable from a policy against using public funds for specific religious purposes. The court distinguished between “status” and “use.” As Justice Ginsberg pointed out in dissent, does this distinction matter in a practical sense?  What are the limits here to funding? Can a state legitimately (or practically) limit funding to religious institutions to non-religious purposes? Perhaps.

Perhaps this decision just heightens the culture wars in another aspect. What about religious or admission practices? Can a state legitimately exclude funding to schools based upon, for example, hiring and discriminatory practices surrounding sexual orientation, gender identity? Can a state enforce a nondiscrimination provisions in a school choice program?