In Espinoza v. Montana Department of Revenue, the Supreme Court will address a question that would have been unthinkable to ask even until quite recently: Can a state be forced to underwrite religious education with taxpayer dollars? Although the court has previously allowed the government to adopt school-voucher programs that provide indirect government aid to religious schools, it has never suggested that the U.S. Constitution somehow requires them to do so — and certainly not in the face of state constitutional rules barring taxpayer funding of religious education. Yet that is essentially what the petitioners are seeking in Espinoza, the latest in a disturbing line of cases attacking the very foundations of the separation of church and state.

At issue in Espinoza is a voucher-type program in Montana designed to divert millions in government dollars to private schools, the overwhelming majority of which are religiously affiliated. The program, enacted in 2015, allows taxpayers to receive dollar-for-dollar tax credits for donations to Student Scholarship Organizations, which then award scholarships to students attending private elementary and secondary schools. In other words, if a taxpayer owes the state, say, $100 in taxes, she can decide instead to send that money directly to an SSO, which will then spend it on private-school scholarships. In practice, the tax-credit program has served its unmistakable goal of funneling government dollars to religious education: The only SSO operating in the state supports 13 private schools, 12 of which are religiously affiliated, and over 94 percent of program scholarships have gone to finance religious education.

Such religious funding, even though indirect, violates the Montana constitution, which includes heightened protections against government-funded religion. The state constitution’s “no-aid provision,” adopted to promote the separation of church and state and to ensure continued taxpayer support for public schools in Montana, expressly prohibits the government from providing “direct or indirect” aid for religious education. In light of the no-aid provision, the Montana Department of Revenue promulgated a rule that would bar SSO scholarships from funding religious education and training at private religious schools. Parents of students attending such schools challenged the rule in court, claiming that it unconstitutionally discriminated against them by excluding religious schools from the tax-credit program. Recognizing the clear conflict with the state’s no-aid provision, the Montana Supreme Court struck down the entire program, abolishing tax-credit funding for all private schools in the state, whether religious or not.

Read the rest of this piece on SCOTUSblog.

Daniel Mach, Director, ACLU Program on Freedom of Religion and Belief

Susie Balcom was overjoyed when she received a conditional offer to serve as a support team leader in Mississippi with AmeriCorps National Civilian Community Corps (NCCC), a national, residential service program for young adults. After graduating from college with a 4.0 GPA and spending two terms in the AmeriCorps state program, Susie was ready, willing, and able to fulfill her dream of serving in the national program.

However, a few weeks later, AmeriCorps NCCC told Susie that she was disqualified from the program.

As part of the application process, Susie completed a detailed medical questionnaire in which she disclosed that she had attended three counseling sessions for anxiety. When an AmeriCorps counselor contacted her for more information, she said she had sought counseling after she was sexually groped by a coworker. She also explained that she had continued to excel at school and work since the incident.

Susie had so much to offer to the communities that AmeriCorps served and knew that she could handle the rigors of the program. However, under AmeriCorps’ prior health screening guidelines, anyone who sought counseling for anxiety within the past six months was automatically deferred from serving with the program.

Susie was devastated — but also knew she would not give up without a fight. She wanted to make sure that moving forward, no AmeriCorps applicants would be unfairly shut out of serving.

With the help of the ACLU and the ACLU of D.C., Susie filed a class action complaint on behalf of herself and other applicants who were subject to the agency’s discriminatory screening process. Her complaint alleged that the screening process violated the Rehabilitation Act, the federal law that prohibits disability discrimination by government agencies (parallel to the Americans with Disabilities Act), and AmeriCorps’ own civil rights policy.

Susie’s perseverance paid off. Today the Corporation for National Community Service, the federal agency that operates AmeriCorps, and the ACLU announced a  groundbreaking settlement. Under its terms, CNCS will overhaul its health screening process to ensure equal opportunities for everyone, including applicants with disabilities.

The revised health screening process will use a new questionnaire that focuses on whether applicants are able to perform the core functions of service with AmeriCorps, with or without reasonable accommodations. As a result, no applicant will be automatically shut out of service with the organization because of an actual or perceived disability, medical diagnosis, or treatment. In addition, AmeriCorps will institute a new formal system for applicants and current service members to request reasonable accommodations that will help them serve, such as access to mental health counseling via phone or videoconference.

AmeriCorps will also invite all class members who are still age-eligible to reapply, financially compensate those who applied and were not placed in the program, offer a professional development course to class members, and establish a recruitment program for people with disabilities. The organization will report to the ACLU for the next two years on how the new process is working.

“Community service is such an enormous part of my life, so I was shocked and disappointed when AmeriCorps disqualified me simply because I sought treatment for trauma,” said Susie. “I’m thankful for reaching this settlement —– not only for myself, but for the more than 1,650 other class members who were subjected to the previous health screening process, and all those who could have experienced discrimination in the future if it were not for these changes. It was over two years ago that my offer was rescinded, two years of reliving the disappointment, and two years of work with the ACLU. It’s all been worth it for this outcome.” 

Qualified candidates like Susie who want to serve in AmeriCorps should have an equal opportunity to do so. Thanks to Susie’s willingness to stand up and fight back, all young people, with or without disabilities, will be treated fairly when they apply to serve their country through AmeriCorps NCCC.

Sandra Park, Senior Staff Attorney, ACLU Women's Rights Project
& Emma J. Roth, Equal Justice Works Fellow, ACLU Women’s Rights Project