FILE - WI Gov. Scott Walker

Wisconsin Gov. Scott Walker (Michael Vadon | Flickr via Creative Commons)

The Wisconsin Institute for Law and Liberty has filed an amicus brief with the U.S. Supreme Court, asking it to consider hearing Espinoza v. Montana on behalf of former Gov. Scott Walker. The brief argues the case is “a landmark" one for school choice and religious liberty.

“The stakes could not be higher for school choice and religious freedom, which is why we strongly encourage the United States Supreme Court to hear this case,” Walker said. “Here in Wisconsin, our school choice program, currently used by over 40,000 students, is giving parents choices and improving students’ education. Despite opposition from the special interest groups, school choice is working in Wisconsin – if the Supreme Court gives Montana and other states the opportunity, I am confident it will work there too.”

The brief highlights the successes of school choice in Wisconsin and the risks presented by a Montana Supreme Court ruling that struck down a school choice program first created by the Legislature in 2015.

Montana’s first school choice program allowed for a tax credit to fund scholarships for students. In response, the Montana Department of Revenue enacted a rule to prevent parents from using the scholarship to send their children to religious schools.

Three parents sued the department. In 2018, the state’s high court struck down the entire tax credit scholarship program, referring to the state constitution’s Blaine Amendment. The amendment prevents the state from using public funds to aid religious organizations, including religious private schools.

About 14 states have broadly interpreted the Blaine Amendment, which restricts state funds from being directly or indirectly distributed to religious organizations. The amendment prevents states from implementing school voucher programs.

“For too long in too many states, opponents of school choice have used unfair, discriminatory so-called ‘Blaine Amendments’ to block school choice programs, which give students the opportunity to attend high-performing, religious, private schools,” C.J. Szafir, WILL executive vice president, said. “We believe this is unconstitutional and are hoping that the U.S. Supreme Court accepts the case to settle the matter.”

Plaintiffs are asking the the nation's highest court to review the Montana Supreme Court’s decision within the context of the U.S. Constitution’s Religion and Equal Protection clauses.

If the Supreme Court accepts the petition, it would be an extension of its recent decision in Trinity Lutheran Church of Columbia, Inc. v. Comer, WILL notes, in which the court held that the Missouri Blaine Amendment could not bar a private religious institution from taking part in a publicly available, nonsectarian program.

In Wisconsin, school choice has benefited thousands of families through the Parental Choice Program (MPCP), WILL notes. During Walker’s eight years as governor, use of school vouchers grew from 20,996 students in 102 private schools in 2011 to 40,073 students in 284 private schools in 2018.

The MPCP is the nation’s oldest school voucher program, created in response to a struggling public education system in Milwaukee, the brief states.

Academic studies of the MPCP have reported increased student achievement, in the form of higher proficiency and graduation rates, and lower crime rates, compared to Milwaukee Public Schools. Its increased student performance and extensive coverage of students with disabilities has achieved better results with less taxpayer dollars, WILL adds.

Critics of school choice scholarships unfairly funnels taxpayer money away from public schools.