Dalton and Tomich white logo
Dalton and Tomich white logo

Big Supreme Court Win For Religious Schools and School Choice Movement

This morning the United States Supreme Court reaffirmed that it is unconstitutional to bar religious schools from receiving public benefits or aid solely because of their religious status. The case, Espinoza v. Montana Department of Revenue, involves a scholarship program that the Montana Supreme Court shut down because it provided a tax credit that some parents were using to help their children attend religious schools. Montana had issued a rule excluding religious schools based on a provision in Montana’s Constitution, otherwise known as a “Blaine Amendment,” that prohibits the State from providing any aid to organizations that are “controlled in whole or in part by any church, sect, or denomination.” Mont. Const., Art. X, 6(1). Many states added Blaine Amendments to their constitutions in the late 1800’s in a transparently anti-Catholic effort to ensure that Catholic schools never received state funds.

In 2017, the Supreme Court called into question the constitutionality of Blaine Amendments in Trinity Lutheran of Columbia v. Pauley by ruling that the Free Exercise Clause of the First Amendment does not allow states to target or exclude institutions based on their “religious status.” In short, if states make funds or some other benefit generally available to private organizations, they can’t categorically exclude otherwise eligible organizations because of their religious status. The Court called “laws that target the religious for ‘special disabilities’ based on their ‘religious status’…odious to our Constitution.”

In Espinoza, the Supreme Court reaffirmed its holding in Trinity Lutheran and stressed that states can’t punish the free exercise of religion by disqualifying religious schools from receiving government aid. This is a big win not only for religious schools but also for the school choice movement. As a result of both Trinity Lutheran and Espinoza, we could begin to see numerous states enact a whole host of school-choice initiatives designed to free parents up to direct funds to the private schools of their choosing, including religious schools. This in turn could make religious schools a more affordable option for many parents and increased demand for private, religious education alternatives. While it may take some time for such school choice initiatives to be put in place, many religious schools and institutions may start preparing now for increased demand for private education options and growing enrollments. We could very well be on the verge of a religious school boom in states across the country.

But, as we have pointed out before, with each new school that is founded or expanded to meet the growing demand, there will be significant land use issues. Where will new schools be allowed to locate? Can a municipality treat public schools better than private religious schools? How much will municipalities allow existing schools to expand to accommodate more students?

At Dalton & Tomich, we have already seen a significant increase in the number of religious land use cases was have had to file on behalf of religious schools which have been denied the land use approvals they need to locate, operate, or expand in a community. Far too many school leaders are completely unaware of the substantial protections religious schools are afforded under the Religious Land Use & Institutionalized Persons Act, 42 U.S.C. 2000cc et seq. (RLUIPA). This is exactly why we have written a guide to help religious schools better understand and assert their rights.

If your religious school is seeking to expand its campus or add on to existing structures and you are facing opposition from the local planning commission, city council or other local governing body, you aren’t out of options. RLUIPA protects religious organizations against discrimination in land use and zoning matters.


Please contact the experienced religious land use and zoning attorneys of Dalton & Tomich, PLC if you need help defending your school’s right to grow and pursue your mission freely so your community can thrive.


Attorney Advertising Disclaimer

Please note that this website may be considered attorney advertising in some states. Prior results described on this site do not guarantee similar outcomes in future cases or transactions.