John Kramer
John Kramer · March 13, 2019

Arlington, Virginia—In a case appealed yesterday (Tuesday, March 12, 2019) to the U.S. Supreme Court, Montana parents are asking the nation’s High Court to overturn a Montana Supreme Court decision that allows the government to bar families from participating in an otherwise generally available student-aid program merely because the parents have selected a religious school for their children. The case could impact tens of thousands of low- and moderate-income families across the nation.

“It is a bedrock constitutional principle that the government cannot discriminate against religion,” said Institute for Justice Attorney Erica Smith, which is representing the families in this case. “Yet for the past 24 years, some states have blocked religious schools and the families who choose them from participating in student-aid programs. It is time for the U.S. Supreme Court to step in and settle this issue once and for all.”

In May 2015, Montana enacted a scholarship program after the Legislature decided all parents—regardless of their income—should be able to select their children’s schools. The program provides a modest tax credit (up to $150 annually) to individuals and businesses who donate to private scholarship organizations. Those scholarship organizations can then use the donations to give scholarships to needy families who want to send their children to private schools.

But the Montana Department of Revenue enacted an administrative rule that prohibited scholarship recipients from using their scholarships at religious schools. Nearly 70 percent of Montana’s private schools are religiously affiliated and excluding them severely limited the choice of families.

In December 2018, the Montana Supreme Court went even further, and ruled 5-2 that the entire scholarship program was unconstitutional under the Montana Constitution because of the inclusion of religious options. The court held that because families may choose to use the scholarships at religious schools, the program provided indirect payments to aid religious institutions, making the entire program unconstitutional under Article X, section 6 of the Montana Constitution. The Court refused to permit the private scholarship organizations to award scholarships to families choosing secular options, although the ruling leaves the Legislature free to re-enact a new program only for families choosing secular private schools. As a result, dozens of children—at both religious and nonreligious schools—are in jeopardy of losing their scholarships.

“The part of the Montana Constitution in question is known as Montana’s ‘Blaine Amendment,’” explained IJ Senior Attorney Michael Bindas. “This sordid provision dates back to 1889 and was designed to discriminate against Catholic schools and students at a time of widespread hostility toward Catholics, both in Montana and throughout the country. By applying it to bar religious options from modern school choice programs, the Montana Supreme Court has transformed this relic of nineteenth-century, anti-Catholic bigotry into an engine of animus against anyone who might choose to attend a religious school.”

Among those impacted by the decision is Kendra Espinoza. Kendra, a single mother, pulled her children out of public school after realizing it was not a healthy environment for her daughters, socially or academically. Kendra enrolled them in a private Christian school and took on a second job cleaning houses to pay the tuition. Her daughters thrived at school, but Kendra struggled to make the tuition payments. Kendra was counting on the scholarships to help her continue to keep her daughters at their school.

“The Montana Supreme Court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships,” said Kendra. “For the benefit of families across the state, and the nation, we hope the U.S. Supreme Court accepts this case and restores this program to families that need them to ensure their children have access to a good, safe and meaningful education.”

During the past 24 years, a conflict over whether religious options may be barred from school choice and other student-aid programs has split the federal circuits and state courts of last resort. On one side, the 6th, 7th, 8th, and 10th U.S. Circuit Courts of Appeal, along with the New Mexico Supreme Court, hold that government may not—consistent with the federal Constitution—prohibit religious options in student-aid programs. On the other side, the 1st and 9th U.S. Circuits, as well as the Maine and Vermont Supreme Courts, hold that it may. With the decision in this case, the Montana Supreme Court joined the second group and further deepened the schism.

“The only way to resolve the split is for the Supreme Court to grant certiorari in another student-aid case,” said Institute for Justice Senior Attorney Tim Keller. “The lower courts cannot resolve this issue on their own. And every year the split continues, it deprives thousands of children of educational opportunities.”

“Resolving this issue will allow these children to legally participate in educational choice programs and also bring much-needed clarity to state and local governments who wish to enact such programs,” Smith said.

Scott Bullock, the Institute for Justice’s president and general counsel, said, “Under the current legal landscape, whether a child attending a religious school is permitted to participate in an educational choice program is based solely on the state or federal circuit within which that child happens to reside. No child should be denied educational opportunity simply because of geography. Now is the time for the Supreme Court to decide this issue.”

The Institute for Justice has successfully defended educational choice programs nationwide, including twice before the U.S. Supreme Court. IJ is currently litigating other educational choice cases in Maine and Washington, and recently won a victory before the Supreme Court of Puerto Rico.