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U.S. Supreme Court will hear appeal of MT ban on tax-credit aid to religious schools

Posted: 3:40 PM, Jun 28, 2019
Updated: 2019-07-01 20:25:36-04

HELENA — The U.S. Supreme Court Friday said it will hear of the appeal of a Montana court ruling that struck down as unconstitutional a 2015 tax credit because it could benefit students at private religious schools.

The nation’s high court accepts only a small fraction of appeals from lower courts, and groups supporting the appeal by a trio of Kalispell parents whose children could benefit from the tax credit hailed Friday’s decision.

The Institute for Justice, a Virginia-based group representing the Kalispell parents, called the case “the most important school-choice case in the nation.”

“We hope the (Supreme) Court will clarify that just as the government cannot force families participating in these programs to choose a religious school, the government also cannot ban these families from choosing a religious school,” said Erica Smith, an attorney for the institute.

More than a dozen school-choice and religion-affiliated groups from across the nation are supporting the appeal of the Montana Supreme Court’s December 2018 decision declaring the tax credit unconstitutional.

A leading opponent of the tax credit and its use to aid children attending private, religious schools called the court’s acceptance of the case “sad and troubling.”

“It suggests Montana’s constitution may be at risk, along with our public schools,” said Eric Feaver, president of the Montana Federation of Public Employees, a union representing thousands of public-school teachers. “It suggests extraordinary federal intrusion into the constitutional and public-school affairs of this state and perhaps many others.”

The case stems from a 2015 Montana law that created a maximum $150 state income-tax credit for donors to “student scholarship organizations,” which can provide financial help to students attending private schools in the state.

But after the law took effect, the state Revenue Department issued a rule saying any students attending religion-affiliated schools cannot be aided by the organizations.

The agency said such aid would violate Montana’s constitution, which forbids any “direct or indirect” appropriation of public funds to aid churches or affiliated religious groups.

Four Kalispell parents whose children attend Stillwater Christian School in Kalispell sued to overturn the rule. A state district judge ruled in their favor, saying the scholarships are not state aid.

But the state appealed and the Montana Supreme Court struck down the entire tax credit in a 5-2 decision last December, citing the constitutional ban on any public aid to religious organizations.

The parents in March asked the U.S. Supreme Court to take up the appeal.

In the Institute for Justice’s petition to the high court, the group said the question is whether government can “bar religious options from otherwise neutral and generally available student-aid programs.”

Another group supporting the appeal, the Alliance Defending Freedom, argued in filings with the U.S. Supreme Court that state constitutional provisions barring any aid to “sectarian” or religious groups are remnants of a nationwide movement in the late 19th Century, meant to forbid any aid to the Catholic Church.

Some states adopted the provisions voluntarily, but Congress forced some states to adopt the provision as a condition of statehood, the Alliance said.

“This court’s review is needed to ensure that the dead hand of 19th Century bigotry relinquishes its stranglehold on educational resources desperately needed by 21st Century parents and their children,” its filing said.

Montana had the ban in its original constitution and also placed it in its new 1972 constitution.

The Alliance said in striking down the tax credit, the Montana Supreme Court ignored a 2017 U.S. Supreme Court ruling that overturned a decision by Missouri to ban religious schools from receiving grants to resurface playgrounds.

It said the high court should clarify that the government may not discriminate against religion when distributing benefits available to others.