Video of fact-checkers responding to Harvard Prof. Mark Tushnet’s egregiously false statements about school choice laws.
(Guest Post by Jason Bedrick)
Today, the U.S. Supreme Court is holding oral arguments on Espinoza v. Montana Department of Revenue regarding the constitutionality of excluding religious schools from a school choice program. To inform its readers about the implications of the case, Harvard Law Today interviewed Harvard Prof. Mark Tushnet, who clearly hadn’t done his homework:
HLT: What do you think the possible impact of this case might be?
Tushnet: The political viability of voucher programs has always been sort of tenuous; they’re hard to enact. One of the things that has been built in to the political compromises that allow them to be enacted—to get sort of over the threshold— is the exclusion of religiously-affiliated schools. [emphasis added]
It’s mistaken to think that voucher programs in the abstract are popular. They’re not terribly popular. They can get enacted. But supporters have to engage in compromises. And one of the compromises routinely has been exclusion of religiously-affiliated schools. […]
And so, if the Court says, “If you create a voucher program, you must include religiously-affiliated schools,” that might lead to the defeat of voucher statutes in places where voters don’t want to fund religiously-affiliated schools. The political compromise that allows them to get majority support won’t be available.
So the image of this case leading to the disappearance of the voucher programs, that image is not mistaken. It’s not guaranteed, but it’s not a mistake to think that if the Court rules in favor of the churches or the schools, in the end, church-related schools will not benefit from the decision.
It is simply false that most school choice programs exclude religious schools. Indeed, of all the 62 voucher, tax-credit scholarship, and ESA programs nationwide, only Montana’s program excludes religious schools, and that was a unilateral administrative decision, not the legislature’s.
The Montana legislation permitted religious schools to receive tax-credit scholarships, but the Department of Revenue decided on its own that they thought doing so would be unconstitutional, so they excluded them. The Montana Supreme Court then held that the Montana Department of Revenue had no authority to make such determinations, but then struck down the law as unconstitutional anyway. Not only was their exclusion not a political compromise, but the Montana legislature objected strongly to the department’s actions.
The three town tuitioning programs in New Hampshire, Maine and Vermont also exclude religious schools, but Maine’s is also the subject of a court battle over this question.
In any case, school choice programs that exclude religious schools are–contra Tushnet–the rare exception, not the rule.
As for the popularity of such programs, the 2019 survey by the Harvard-affiliated journal Education Next found that 58 percent of Americans support tax-credit scholarship programs like the one in Montana, while only 26 percent opposed them.
Tushnet also misstates the fundamental question in Espinoza:
Now we have the Trinity Lutheran case saying it’s discriminatory to exclude religious institutions from a generally available program. And Zelman saying it’s not a violation of the Establishment Clause to include them if it’s indirect. The question in Espinoza v. Montana is whether it is a violation of the Establishment Clause to exclude religious institutions from direct financial support. And that was the question that was reserved in that footnote in Trinity Lutheran.
No, that’s not right at all. As in Zelman, Montana’s tax-credit scholarship program only indirectly aids schools because the primary beneficiaries are the families who receive the scholarships. Direct financial support of a religious school is not at issue here. Indeed, the state aid in the Trinity Lutheran case was directly to the religious school. Direct or indirect is not the question, neither here nor in the Trinity Lutheran footnote Tushnet references. The question the footnote reserved was whether there is a constitutionally meaningful distinction between religious status and religious use. In his stirring dissent from footnote 3 (concurring in the judgment), Justice Gorsuch argued that there is not:
[T]he Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. See ante, at 12. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him).
Tushnet may disagree with Gorsuch on the answer to this question, but it doesn’t appear that Tushnet even understands what question is being asked.
Next time, Professor Tushnet should do his homework before opining.