Montana high court set to rule on state’s discrimination against religious schools

The ignominious death of a critical educational choice case at the hands of a newly elected school board majority in Colorado dealt a serious blow to disadvantaged students nationwide. However, the debate about Blaine Amendments goes on. Espinoza v. Montana Department of Revenue, a similar case in Montana, will get its day in court on April 6.

Eighteen states have enacted scholarship tax credit programs, which use changes in state tax law to expand educational opportunity for students. Under these programs, individual or corporate donors are given a state tax credit for contributions made to nonprofit scholarship-granting organizations that provide financial assistance to families who wish to attend nonpublic K-12 schools.

{mosads}Many scholarship-granting organizations, including ACE Scholarships, are annually forced to turn thousands of families away due to limited funds. Well-designed tax credit programs help alleviate this problem by providing a powerful incentive for philanthropists and ordinary taxpayers to invest their dollars in providing choice for students. The result is that scholarship-granting organizations can provide more K-12 scholarships and send fewer letters informing families that they will have to wait another year (or perhaps forever) for help.

For now, Montana’s scholarship tax credit program is unfortunately constrained by a paltry limit of $150 in annual tax credits per donor and an overall annual credit cap of $3 million. But the program still provides opportunities to Montana students, and the state is still obligated to administer it within the bounds of the Constitution.

Following the enactment of Montana’s scholarship tax credit program in 2015, the Montana Department of Revenue (MDOR) issued a rule prohibiting faith-based schools from participating. By eliminating parents’ ability to use scholarships at religious schools simply because those school are religious, this rule had the effect of severely restricting families’ options in a way that constitutes religious discrimination. Notably, MDOR has not attempted to apply such a rule to other state tax-benefit programs that include religious organizations.

Despite this inconsistency, MDOR argues that the rule is required under Montana’s state constitutional No-Aid Clause. Commonly known as Blaine Amendments, provisions like this one bar the provision of state aid to “sectarian” or religious organizations in more than three dozen states.

Opponents of educational choice tend to frame these provisions as bulwarks of the oft-misunderstood concept of “separation of church and state,” but legal precedent clarifies that the First Amendment actually calls for government neutrality toward different religions and toward religion in general rather than absolute separation from all religion.

Blaine Amendments are anything but neutral. They are deeply rooted in a history of discrimination and persecution against religious minorities — particularly Catholics, but also Mormons in several western states (including Montana). The word “sectarian” has a history of being used as a pejorative for religious viewpoints and beliefs outside the mainstream.

Three Montana families challenged the rule in Espinoza, arguing that it violated constitutional religious protections. The courts agreed. A preliminary injunction against the rule was issued in March 2016, and a permanent injunction followed in June 2017. MDOR appealed that decision to the Montana Supreme Court.

Legal logic is overwhelmingly on the side of the parents. Scholarship tax credit programs have a perfect legal track record in similar cases elsewhere. Courts in Arizona, Alabama, Florida, Georgia, Illinois, and New Hampshire have all upheld similar programs that include faith-based schools.

At the federal level, nonpublic school choice programs have been constitutional since the U.S. Supreme Court’s 2002 Zelman v. Simmons-Harris decision. The key tenet of that decision was that choice programs maintain government neutrality toward religion by providing aid to parents, not schools, who make independent decisions about where to spend it. More recently, the high court held in Trinity Lutheran v. Comer that barring religious organizations like churches from participating in public benefit programs simply because they are religious is inconsistent with constitutional religious protections.

Should the Montana Supreme Court rule in favor of the families in Espinoza, parents would forever be free to choose among Montana’s diverse private school options without interference from the state. Should the families lose, there may be an opportunity for the U.S. Supreme Court to finish the work it started in Trinity Lutheran and rule on the constitutionality of Blaine Amendments as instruments of discrimination in educational choice programs. 

Either way, the conversation will continue. Parents know what their children need and deserve when it comes to education, and they show no sign of abandoning the fight for expanded opportunity any time soon.

Ross Izard is director of policy for ACE Scholarships (@ACEscholarships), the largest privately funded scholarship-granting organization in Montana, and a senior fellow in education policy at the Independence Institute (@i2idotorg), a free market think tank in Denver.