February 10, 2016

2015 was a busy time for IJ’s school choice team. We had two major victories from the Alabama and North Carolina Supreme Courts, five states enacted new choice programs and we stepped in to defend one of those new programs from attack in Nevada.

2016 is showing no signs of a school choice slowdown. After working to bring school choice to Montana for almost 10 years, we were thrilled when the Legislature finally passed a tax-credit scholarship program—without the governor’s signature—in May 2015. But before the program was able to go into effect, it came under attack. In late December, IJ stepped in to protect the program. The case is a perfect example of how local politics can deprive children of school choice if it is left unprotected.

The program provides a modest tax credit (up to $150 annually) to individuals and businesses who donate to private scholarship organizations. Those scholarship organizations then use the donations to give scholarships to families who want to send their children to private schools. The program has the potential to be a boon to those who cannot afford to pull their children out of failing public schools and to those who currently make tremendous financial sacrifices to do so.

That is, it did until politics got in the way. The state Department of Revenue proposed a rule that would deny choice to the majority of families eligible under the program by limiting scholarships to only those who wish to attend nonreligious private schools. As most of the private schools in the state are religious, the rule virtually guaranteed the program’s failure.

IJ staff testified against the rule at a public hearing, explaining that it would be both invalid and unconstitutional. As we argued, the rule exceeds the Department’s authority by contradicting the clear intent of the Legislature to make scholarships available for students to attend all private schools. The rule also discriminates against religion in violation of both the Montana and U.S. Constitutions’ Religion and Equal Protection Clauses. The government cannot exclude a religious option from an otherwise neutral benefit program.

In an unexpected twist, the Montana attorney general also submitted comments against the rule, agreeing with IJ that it was unconstitutional and making clear that it would not defend the rule in court if challenged. The Department passed the rule anyway.

IJ filed suit in state court only hours after the rule was adopted, representing three families who wish to use scholarships to send their children to religious schools. The government should not be able to play politics with children’s education—or their constitutional rights. We are confident that the Montana courts will agree. u

Erica Smith is an IJ attorney.

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