Montana Public Radio

Supreme Court Rules Montana Program Can't Leave Out Religious Schools

Jul 1, 2020

The Montana Supreme Court discriminated against religious schools when it invalidated a tax credit program that supported school choice, according to a ruling handed down by the U.S. Supreme Court on Tuesday.

The case centered around a school choice program created by the 2015 Montana Legislature. The program provided donors of some scholarship programs with up to a $150 tax credit.

Shortly after its creation, the Montana Department of Revenue crafted a rule prohibiting the program’s scholarship recipients from using the money at private religious schools. The state agency said that specific section of the new law violated a state constitutional provision prohibiting state funds from directly or indirectly flowing to religious institutions.

The issue went before the Montana Supreme Court in 2018. Its ruling said that while the revenue department did not have the authority to strike a section of the law, the court agreed with the agency that the religious schools’ participation in the program violated the state constitution’s no-aid clause. This invalidated the entire program.

Tuesday’s 5-to-4 the U.S. Supreme Court ruling said once a state decides to fund private schools, it cannot exclude certain schools because they are religious.

“Every Monday morning for the last several weeks, we’ve been going on to the Supreme Court website and watching SCOTUS Blog and watching for that decision,” said Kalispell’s Kendra Espinoza.

Espinoza is one of the case’s three plaintiffs, and uses the scholarship program in question. While the Supreme Court took up the case, the state court’s decision was put on hold. The single mother uses the roughly $1,000 she receives from Big Sky Scholarships – the only participating organization in the state’s tax credit program – to help pay tuition at Kalispell’s Stillwater Christian School.

The U.S. Supreme Court’s Tuesday ruling likely means the state Supreme Court will need to reinstate the school choice program, at least until its enacting legislation sunsets in 2023.

“For our family, that means being able to receive scholarships without discrimination, and that is a very big win for all of America,” Espinoza said. “We're excited.”

This case will have a ripple effect in 36 states that have similar constitutional provisions prohibiting state funds from flowing to religious institutions, according to Tim Keller with the Institute for Justice. The nonprofit law firm litigated the case on behalf of Espinoza and two other Flathead Valley families.

“Fourteen of those [states] had previously had strict constructions of those provisions that prohibited the participation for religious educational options in school choice programs,” he said. “Those 14 states are now prohibited, under this ruling, from excluding religious options.”

Raph Graybill, lead legal counsel for Gov. Steve Bullock, represented Montana in the case. He said the state won’t make any changes to the program until the state Supreme Court issues its new decision.

“Now whether or not the program just runs on its own, or whether it needs another implementing rule, that wasn’t decide here, and that's something that we would have to wait to see what the Montana Supreme Court says in order to review," Graybill said.

Graybill is running for attorney general as a Democrat. The current attorney general, Republican Tim Fox, released a statement saying his office warned the exclusion of private religious schools would violate the federal constitution.

Tuesday’s Supreme Court ruling received both praise and condemnation among other public officials. Most reactions fell along party lines, with Democrats decrying the decision and Republicans applauding it. Public education groups remained fairly quiet. School Administrators of Montana said it is still digesting the decision and declined to comment.

Montana Office of Public Instruction Superintendent Elsie Arntzen also released a statement. She said she appreciates that the decision reaffirmed the Montana Legislature’s intent to support the education that families think is best for their children. As a member of the state Legislature, Arntzen voted in favor of the bill creating the tax-credit program.

Arntzen is running for re-election this year. Her Democratic opponent Melissa Romano said the U.S. high court ruling opens the door for public school resources to support private schools.

Reactions amongst Montana’s Congressional delegation and those running for federal seats fell along party lines as well.

The case is now remanded back to the state Supreme Court. It is unclear when that court will issue a new decision.