DOUBLE JEOPARDY FOR SCHOOL CHOICE: Education activists are back in court.

• Author: Root, Damon

IN ZELMAN V. Simmons-Harris (2002), the U.S. Supreme Court upheld Cleveland, Ohio's school choice program against the charge that it was unconstitutional to provide tuition aid to parents who opted to send their children to religiously affiliated magnet schools. So long as "a government aid program is neutral with respect to religion, and provides assistance directly to a broad class of citizens who, in turn, direct government aid to religious schools wholly as a result of their own genuine and independent private choice," the Court said, the program passes constitutional muster.

The Supreme Court is now weighing the constitutional merits of another school choice initiative. At issue in Espinoza v. Montana Department of Revenue is a 2015 scholarship program created by the Treasure State's legislature "to provide parental and student choice in education." The program operates by creating a tax credit for individuals and businesses that donate to private, nonprofit scholarship organizations, which then use such donations to fund educational scholarships. Families who qualify for the scholarships may use the money to help send their children to a "qualified education provider," a category which includes religiously affiliated K-12 private schools.

In 2018, however, the Montana Supreme Court declared religious schools entirely off-limits for the program, pointing to a provision of the Montana Constitution that prohibits the use of public funds "for any sectarian purpose or to aid any church, school, academy...