However, “[s]tudents and teachers do not ‘shed their constitutional rights to freedom of speech or expression at the schoolhouse gate,’” as the Trump administration recently noted in a federal guidance to school districts. This comes against the backdrop of the U.S. Supreme Court, which heard oral arguments last week in Espinoza v. Montana Department of Revenue, which could strike down all 37 Blaine amendments.

In 2015, the Montana legislature gave a dollar-for-dollar tax deduction of up to $150 to anyone who donated to a private, nonprofit scholarship fund for needy schoolchildren. The independently administered scholarship let parents send their children to any private school, religious or secular. But state officials told Kendra Espinoza not to apply, because she sends her two children to a Christian school in Kalispell.

With the help of the Institute for Justice, she and two other parents sued, arguing the state infringed their religious rights under the First Amendment. In December 2018, the Montana Supreme Court ruled that, through the program, state revenues “indirectly pay tuition at private, religiously-affiliated schools.” To assure no such entanglement of funds, justices struck down the entire program.

There is reason to believe the Supreme Court will overturn their ruling, and more reason people of faith should hope it does. One of these is plain logic: A tax deduction is not a subsidy. By offering a tax deduction, the state does not give anything to the school or the taxpayer; it merely refrains from taking some portion of the taxpayer’s earnings. The IRS allows tax deductions for charitable gifts, the largest share of which go to religious institutions. This does not constitute government “funding,” unless you believe all citizens’ money properly belongs to the government.

Supreme Court precedent is on Espinoza’s side. In the 1983 Mueller v. Allen ruling, justices upheld a state tax deduction for the cost of tuition, books, and transportation to any school, public or private. The write-off constitutes an “attenuated financial benefit, ultimately controlled by the private choices of individual parents, that eventually flows to parochial schools from the neutrally available tax benefit.”

Indeed, in 1947, justices ruled that the state could directly reimburse parents for the cost of transporting students to parochial schools (Everson v. Board of Education of the Township of Ewing). And in 2002, the Supreme Court upheld Cleveland’s school choice program in Zelman v. Simnmons-Harris, even though 96 percent of students chose religious schools. Justices found the city “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 danger is that government funding will bring government regulation, such as insisting on a curriculum that violates the religion of the recipients. A tax deduction solves this problem, while respecting parental rights.