Montana
The Montana Blaine Amendment was the subject of the Espinoza case. The United States Supreme Court held that the amendment cannot be used to discriminate based on religion in the context of generally available scholarship programs. Montana is now free to expand its existing tax credit program or enact new forms of educational choice programs, including voucher and education savings account programs.
Constitutional Provisions
Blaine Amendment
“(1) The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination. (2) This section shall not apply to funds from federal sources provided to the state for the express purpose of distribution to non-public education.” Montana Const. Art. X, § 6.
Education Articles
“(1) It is the goal of the people to establish a system of education which will
develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state. (2) The state recognizes the distinct and unique cultural heritage of the American Indians and is committed in its educational goals to the preservation of their cultural integrity. (3) The legislature shall provide a basic system of free quality public elementary and secondary schools. The legislature may provide such other educational institutions, public libraries, and educational programs as it deems desirable. It shall fund and distribute in an equitable manner to the school districts the state’s share of the cost of the basic elementary and secondary school system.” Montana Const. Art. X, § 1.
“The public school fund shall forever remain inviolate, guaranteed by the state against loss or diversion.” Montana Const. Art. X, § 3.
“The supervision and control of schools in each school district shall be vested in a board of trustees to be elected as provided by law.” Montana Const. Art. X, § 8.
Other Relevant Provisions
“No appropriation shall be made for religious, charitable, industrial, educational, or benevolent purposes to any private individual, private association, or private corporation not under control of the state.” Montana Const. Art. V, § 11(5).
Relevant Case Law
Espinoza v. Montana Department of Revenue, 140 S. Ct. 2246 (2020).
Parents challenged as unconstitutional under the Religion and Equal Protection Clauses of the Montana and U.S. Constitutions the Department of Revenue’s administrative rule precluding participation of religious schools in the new Tax Credit for Contributions to Student Scholarship Organizations program. The United States Supreme Court ruled for parents, holding that Montana could not discriminate based on religious status and upheld the program as constitutional.
Montana State Welfare Board v. Lutheran Social Services, 480 P.2d 181 (Mont. 1971)
The Montana Supreme Court held that “payment of public assistance to indigent expectant mothers is not an unconstitutional ‘appropriation,’ ‘loan,’ ‘donation,’ or ‘grant’ in violation of the Montana Constitution, simply because such persons may request the counseling and assistance of [religious] private adoption agencies.” The Court went further and held that “[i]n no way do we find that [religious] private adoption agencies are directly or indirectly benefited by payments to or on behalf of a qualified recipient, nor have they ever received such funds.”
State ex rel. Chambers v. School District, 472 P.2d 1013 (Mont. 1970)
The Montana Supreme Court held that a special tax to pay for teachers at a local Catholic school violates the explicit terms of Article IX, Section 8 (the predecessor of the current Blaine Amendment, Article X, Section 6) because it uses public money to aid a sectarian school by paying for its teachers.
Existing Private School Choice Programs
Tax Credit for Qualified Education Contributions
Montana Code Annotated Sections 15-30-3101 to -311
What You've Heard About Blaine Amendments
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
What You Need to Know After Espinoza
Blaine Amendments are controversial state constitutional provisions rooted in 19th century anti-Catholic bigotry. Their original purpose was to prevent the government from funding Catholic schools while preserving funding for America’s nascent “common” schools, which were predominantly Protestant and often inhospitable to Catholics. For decades, opponents of educational choice have employed Blaine Amendments—found in 37 state constitutions—as blunt weapons to impede and invalidate educational choice programs. However, thanks to a decades-long legal strategy tenaciously pursued by IJ, these state constitutional obstacles to educational freedom are now largely a dead letter.
The Supreme Court ruled in 2002, in Zelman v. Simmons-Harris, that the federal Constitution allows states to empower parents to choose religious and nonreligious schools alike when participating in educational choice programs so long as the state remains religiously neutral and parents exercise true private choice. But Zelman left open the question of whether the constitution would permit a state to exclude religious options from an educational choice program. On June 30, 2020, in Espinoza v. Montana Department of Revenue, the Court answered that open question and held that the federal Constitution forbids states from excluding religious schools as options for families participating in educational choice programs, including through Blaine Amendments.
The federal Constitution, wrote Chief Justice Roberts for the Espinoza majority, “condemns discrimination against religious schools and the families whose children attend them. They are members of the community too, and their exclusion from [Montana’s] scholarship program here is odious to our Constitution and cannot stand.” The Supreme Court’s holding was clear and unambiguous—and it applies to every state: While a “State need not subsidize private education[,] . . . once a State decides to do so, it cannot disqualify some private schools solely because they are religious.”
As a result of Espinoza, nearly every state is free to enact programs that will empower parents to choose the educational environment that is best for their own children. Of course, each state has a unique history, context, and constitutional provisions. That is why IJ has produced this 50-state guide. The guide analyzes each state’s constitution in light of Espinoza and explains how the ruling impacts policymakers’ ability to enact educational choice programs.
