This morning the Supreme Court is hearing oral arguments in Espinoza v. Montana, a case involving a now-defunct state tax credit program.

Harvard Law professor Mark Tushnet argues in an interview published in Harvard Law Today (1/21/2020) that if the Supreme Court requires funding to go to both religious and secular schools, voters might reject voucher programs altogether.

Professor Tushnet notes, "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."

The Espinoza case could potentially invalidate footnote 3 of the 2017 Trinity Lutheran decision in which the Supreme Court mentioned that the decision that it was discriminatory for the state of Missouri to exclude religious schools from an otherwise neutral recycled rubber playground program only applied to recycled rubber playgrounds.

The decision in Espinoza v. Montana is expected this summer.

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