In a 5-4 ruling announced Tuesday, June 30, the United States Supreme Court decided Montana improperly canceled a scholarship plan due to religious discrimination. Chief Justice John Roberts joined the conservatives to give a big victory to school choice proponents. Liberty Nation spoke exclusively with the winning lawyer, who revealed an unexpected prediction. According to Richard Komer, this win for school choice is a triumph for public education as well. Thirty-seven states’ laws are invalidated by the decision, and six justices wrote opinions in the case that may change the public funding of education forever.
Montana set up a system to give tax credits to people who donated money for scholarships. Families would be able to use the funds to pay for private schooling. The state’s tax department decided that religious schools would be prohibited from the program, however, and three low-income mothers of students denied scholarships sued. The trial court barred enforcement of the religious ban, and then the Montana Supreme Court overturned that ruling on appeal. The United States Supreme Court took it up from there to give major victory for school choice backers.
As for attorney Richard Komer, it turned out to be the winning lottery ticket that paid off just as he retired. The senior attorney leaving the Institute for Justice got a promise that if the issue he worked on for decades were granted a hearing at the Supreme Court, he would get the chance to argue the case. It was, allowing Mr. Komer his first argument at the Supreme Court, which he won on Tuesday. He spoke exclusively to Liberty Nation about the case and its consequences.
“We Thought We Had A Shot At Kagan”
The advocate went into the case thinking he would have support from the conservatives and opposition from the most liberal justices, but that Elena Kagan and Sonia Sotomayor might rule for his client. Justice Kagan had signed on to Justice Roberts’ opinion in Trinity Lutheran, a case used as a foundation for this ruling, and Justice Sotomayor’s Catholic school upbringing gave the lawyer hope she would be persuadable. As Justice Roberts is ever more reliably unreliable as a swing vote, his decision in the case was most important and was cultivated by both sides. Komer said, “It was clear we needed Roberts, and we needed him very badly.”
Komer had a hot bench for his argument, with early aggressive questioning from Justices Sotomayor, Kagan, and Ruth Bader Ginsburg. Justice Stephen Breyer asked Mr. Komer, as well as his opposing counsel, what the ramifications were for public school education. Breyer seemed concerned a ruling allowing the scholarship funding would damage public schools. Komer said in response to Justice Breyer’s question, “If a state has a school choice program – you can’t exclude religious people and religious schools from it.”
“What he was really trying to get at is a kind of extreme theory out there, which is, if we allow religious schools to participate in school choice programs do we have to take the next step and require states to have full choice programs,” Komer explained to LN. The answer is no, he says. The ruling “does not require alternatives to the public schools. States are left with that as a policy matter …”
Don’t Believe The Hype
Komer mused, “What’s really at issue here – the real question is, will increasing educational choice for people, including private alternatives, will that harm or help the public schools?” He answered himself, saying that it will help, and for the same reason that any customer benefits when government monopolies are eliminated: Competition benefits consumers. That the consumers here are purchasing an education rather than physical goods is no matter. Mr. Komer said the data shows positive results from the educational competition in states where there is any. He thinks poor incentives lead public schools to fail:
“What amazes me, and I’m retired so I can say this, is the failure of the public to recognize that this is a game in which they are always, as taxpayers, going to lose because what we do with public education is consistently reward failure. The public schools need to fail if they want to get more money for teachers, for administrators …”
Justice Roberts wrote the opinion for the court, joined by Justices Clarence Thomas, Samuel Alito, Neil Gorsuch, and Brett Kavanaugh. Justices Ginsburg, Breyer, Kagan, and Sotomayor dissented, and all but Kagan and Kavanaugh wrote separate opinions in the case.
Komer says that “the opponents of school choice will use anything, whatever they can find, to prevent an effective school choice program.” That may be true, but they will have a harder time doing so now. Thanks to his efforts and those of his co-counsel, Erica Smith, Montana will now have to restart the program, allowing families to spend their scholarship money at religious schools.
Read more from Scott D. Cosenza.