School Choice Rally

Students from across the state were bused to the Capitol in January for a school choice rally in 2017. The U.S. Supreme Court will hear an appeal from Montana school choice advocates who want to continue a program that offered tax credits to religious schools.

The nation's highest court will take up a case about a Montana school choice tax credit program that could have national repercussions. 

The U.S. Supreme Court will review a Montana Supreme Court decision that said religious schools cannot participate in a tax credit program that reimbursed scholarship donations. 

The Institute for Justice, a conservative law firm representing parents in northwest Montana, argued in its appeal that Montana's exclusion of religious schools violates the U.S. Constitution. 

The tax credit program was approved by the Legislature and allowed to become law by Gov. Steve Bullock in 2015. It let Montanans receive a tax credit of up to $150 for donations to approved scholarship organizations for private schools or "innovative education programs" in public schools. The court decision struck down the program.

The tax credit was a toe dipped into the water on school choice, a term used to describe programs that use public money to fund education in private schools. Several states have more sweeping and expensive programs than Montana's. The programs are often a priority for conservative lawmakers, while liberals argue that they unfairly divert money from public schools. 

In challenging the ruling as a violation of religious freedom, the legal argument shifts from minutiae of government funding to larger questions about so-called "Blaine Amendments."

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Several states, including Montana, have constitutional prohibitions against providing public money to religious institutions. Opponents of the measures argue that they discriminate against religion and were fueled by anti-Catholic hysteria. Supporters argue that the rules ensure the separation of church and state. 

In the Montana court, the case took on a unique issue among school choice legal battles, forcing courts to address whether a tax credit is government spending. Most previous school choice cases have been decided on other issues, like taxpayer standing. 

The Montana Supreme Court's majority opinion highlighted the use of "indirect appropriations" in the state constitution's prohibition against directing public money toward religious programs. 

During the tax credit's short run, it was used by few people in Montana. In the two years for which information is available, the program used only about 1 percent of the $3 million set aside by the state.

Kendra Espinoza, a Kalispell-area parent represented in the case, praised the Supreme Court in a press release issued by the Institute for Justice. 

“For the benefit of families across the state, and the nation, we hope the U.S. Supreme Court restores this program to families that need it to ensure their children have access to a good, safe and meaningful education,” she said. 

The Montana Department of Revenue, which wrote the original rule excluding religious schools, supported the state ruling in an statement emailed from a spokesman. 

"The Montana Supreme Court correctly concluded that the Montana Constitution prevents public funding of private religious schools. The State of Montana is ready to defend its case before the United States Supreme Court to protect Montana’s Constitution."