ALF Advocates For School Choice In Supreme Court

The Petitioners’ brief in this school choice case explains that in Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020), the Supreme Court held that a state may not exclude families and schools from participating in a student-aid program because of a school’s religious status. The Supreme Court acknowledged, but did not resolve, the question of whether a state may nevertheless exclude families and schools based on the religious use to which a student’s aid might be put at a school. In the decision below, the First Circuit upheld a religious exclusion in Maine’s tuition assistance program on the ground that the exclusion does not bar students from choosing to attend schools with a religious status, but rather bars them from using their aid to attend schools that provide religious, or “sectarian,” instruction. The Atlantic Legal Foundation long has been a strong advocate for school choice.  Because this case raises a legal issue that goes to the heart of school choice,  the Foundation has joined as co-amicus a merits-stage amicus brief authored by Daniel R. Suhr and Reilly Stephens of the Liberty Justice Center. The American Federation for Children also has joined the brief as co-amicus.  

Issue Areas:

Effective Education, Individual Liberty

Read the Amicus Brief:
Question(s) Presented:

Does a state violate the Religion Clauses or Equal Protection Clause of the United States Constitution by prohibiting students participating in an otherwise generally available student-aid program from choosing to use their aid to attend schools that provide religious, or “sectarian,” instruction?

ALF’s Amicus Brief:

The amicus brief argues that “The exclusion of faith-based schools from choice programs severely curtails the educational options available to families.”  By describing the unique needs of different types of students, the brief illustrates why it is essential that parents have the right to choose schools that best suit the needs of their children. The examples in the brief include children with physical or intellectual needs, victims of bullying, religious minorities, tribal students, children in military families, children at single-sex schools, and children in alternative educational settings. The brief also discusses why educational pluralism promotes core educational values.


The Supreme Court issued a favorable opinion on June, 21, 2022.


For more information, please contact ALF Executive Vice President & General Counsel Lawrence S. Ebner at

Date Originally Posted: September 9, 2021

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