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No, the Supreme Court didn't mandate public funding for private schools

As published in the Omaha World-Herald.


As the Nebraska Legislature reconvenes, some policymakers who support school privatization may feel emboldened by the U.S. Supreme Court’s recent ruling on Espinoza v. Montana, but Nebraskans would be wise not to replicate other states’ failed experiments of school vouchers or tax credit scholarships. In 2015, the Montana Legislature established a tax credit scholarship program that would grant a tax credit to anyone who donated to a “student scholarship organization,” which would then use those funds to award scholarships to children for tuition at a private school. However, the Montana Supreme Court found the vast majority of dollars went toward religious education in violation of their state constitution, which, like Nebraska’s, prohibits any direct or indirect payment of state funds to religious institutions, including schools. As a result, the Court eliminated the program. But last month, the U.S. Supreme Court reversed that ruling in a 5-4 decision and concluded that once Montana created the program, it could not, under the First Amendment, make a distinction between religious or secular private schools. Writing for the majority, Chief Justice Roberts says, “A State need not subsidize private education. But once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”

As is typical of the Roberts Court, the decision is more limited in its reach and scope than it first appears. The majority opinion doesn’t say Montana’s constitutional provision prohibiting state aid to religious institutions is unconstitutional. It doesn’t overturn prior precedent that states can withhold funding certain types of religious instruction (Locke v. Davey, 2004). The most important sentence regarding the case is straight from Roberts’ opinion: “A State need not subsidize private education.” In other words: Just because states can create these programs doesn’t mean they should. And that’s something we Nebraskans have long understood. There is good reason we are one of only a handful of states without tax credit scholarships or other voucher schemes. We have excellent public schools. We are fiscally responsible. We believe in accountability, transparency and public oversight of our tax dollars. And we need only look to states that have adopted vouchers to know they do not improve academic outcomes, and they worsen racial and socioeconomic segregation. The abundance of research on these topics has not, however, stopped some policymakers. In Nebraska, Legislative Bill 1202 would enact a program similar to the one in Montana. Of course, circumstances have changed considerably since LB 1202 was first proposed. A global pandemic closed school buildings and the State Capitol. Our legislators will return to a very different session than the one they left in March. They will be surrounded by plastic barriers and masks — stark reminders of the ongoing threat of COVID-19 that will be impossible to ignore. And instead of a once-projected surplus, senators will be facing a significant reduction in revenue, budgetary shortfalls, dire economic forecasts and extremely difficult decisions.

One decision that shouldn’t be hard for our leaders is to support Nebraska’s public schools. Diverting hard-earned tax dollars and much-needed resources away from them via tax credit scholarships was never a sound proposal, especially as our state’s schools have only been fully funded in three of the last 17 years. But now that we have endured the first months of this global pandemic and seen just how essential our public schools are, we can surely agree it is the right time to prioritize pre-K-12 public education and ensure Nebraska’s public schools have the resources they need to serve all children.

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