Fighting for Educational Choice at the Montana Supreme Court

This spring, IJ argued on behalf of Montana families at the Montana Supreme Court in an educational choice case that could have national implications.

As Liberty & Law readers may recall, we represent three moms seeking to take advantage of the state’s tax-credit scholarship program. The Montana Department of Revenue has excluded these families because they want to choose religious schools. Although the Montana program, like those in 18 other states with tax credit scholarships, was intended to include all accredited private schools—religious and secular alike—MDOR chose to exclude religious schools from the list of those at which families could use scholarships.

Although the Montana program, like those in 18 other states with tax credit scholarships, was intended to include all accredited private schools—religious and secular alike—MDOR chose to exclude religious schools from the list of those at which families could use scholarships.

While IJ has successfully rebuffed challenges to programs that include religious schools in cases from Alabama, Arizona, Florida, Georgia, and Illinois, our Montana case represents the first time IJ’s parent-clients have had to sue the state revenue department for trying to keep out religious schools and the parents choosing them.

We won a first-round victory from the trial court, which ruled that MDOR’s discriminatory rule was wrong. The agency then appealed to the Montana Supreme Court, and argument took place in April before a large audience in Missoula during the University of Montana’s Law Day. Once a year, the court goes on the road to the University of Montana, choosing to hear a case it deems of particular interest—this year, it chose IJ’s challenge.

MDOR defended its rule as necessary to comply with the Blaine Amendment in the Montana Constitution. Blaine Amendments, which prohibit the use of state funds to aid religious schools, have become a favorite tool of those looking to derail educational choice programs. To date, however, every court IJ has appeared in has agreed with our argument: Tax credit scholarships do not involve the use of public funds—they are private donations. Furthermore, we point out that scholarship programs aid families, with only incidental benefit to private schools. MDOR must win on both counts to justify its exclusionary rule.

At the argument, MDOR’s attorney struggled to distinguish the scholarship tax credits from the typical array of tax benefits that Montana, like other states, provides directly to churches and to all private schools, including religious ones. Justices also questioned MDOR’s assumption that the Montana Constitution could not apply federal precedents distinguishing aid to students from aid to schools. IJ, of course, represented parents in the two U.S. Supreme Court precedents underlying both issues.

We came away from the argument cautiously optimistic, and if we win, our clients will be able to seek scholarships on an equal basis with families preferring secular private schools.

We came away from the argument cautiously optimistic, and if we win, our clients will be able to seek scholarships on an equal basis with families preferring secular private schools. Should we lose, the silver lining could be a request to the U.S. Supreme Court to review and then reverse the Montana Supreme Court, a decision that would be of great use in defending and advancing educational choice across the country. Regardless of the outcome, IJ will continue to stand by families seeking to get the best possible education for their children.

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