As the Biden administration prepares to take office in January, discussions over whom Joe Biden will choose to succeed Betsy DeVos as education secretary have been contentious. But one thing's clear: whomever he selects—"a public educator," we're assured—is likely to clash with the previous administration's enthusiasm for school choice.
Luckily, in some cases, it won't matter. The June outcome of the Supreme Court case Espinoza v. Montana Department of Revenue paved the pathway for an expansion of parental choice on the state level, including opening up the possibility of religious charter schools. And since Espinoza is a decision interpreting the federal constitution, delivered by the highest court of the land, this pathway will remain open, even if Biden's frontrunners for education secretary have already voiced antipathy for it.
In Espinoza, the Supreme Court concluded that any states subsidizing private education—whether through tax credits, vouchers or other means—cannot withhold such funding from certain schools merely because they are religious. As Chief Justice Roberts put it, writing for the majority, "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."
The decision raised obvious questions, which are worth exploring in anticipation of hostility from the incoming administration. Namely, as Justice Breyer articulated in his dissent: "What about charter schools?" Traditionally, state and federal laws have strictly prohibited religious charter schools. Would Espinoza render those laws unconstitutional?
Nicole Stelle Garnett, John P. Murphy Foundation professor of law at University of Notre Dame and adjunct fellow at the Manhattan Institute, is author of the recent report, Religious Charter Schools: Legally Permissible? Constitutionally Required?
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