On April 6, the Montana Supreme Court will hear oral arguments in Espinoza v. Montana Department of Revenue, one of the most important education-related cases in the nation. As private school leaders representing different faiths, creeds, and educational models, we believe that the Montana Supreme Court has an opportunity not only to honor constitutional religious protections, but to preserve the diversity that makes Montana’s private education sector strong.
Montana’s tax credit scholarship program provides a modest tax credit of up to $150 to individuals or corporations who contribute toward K-12 private school scholarships through nonprofit scholarship organizations. Enacted in 2015, the program was envisioned by lawmakers as a way to expand educational opportunity by opening Montana’s diverse private school sector to more students.
In 2015, the Montana Department of Revenue (MDOR) issued a rule barring faith-based private schools from participating in the program under the Montana Constitution’s No-Aid Clause, also known as a Blaine Amendment. In essence, the rule sought to restrict families’ ability to access the schools that could best serve their children by unilaterally prohibiting the use of scholarships at a majority of Montana private schools simply because those schools are religious.
Found in 38 state constitutions nationwide, Blaine Amendments prohibit the provision of state aid to “sectarian” causes or religious entities. Although these clauses are often euphemized as standing for the separation of church and state, they are deeply rooted in a history of religious discrimination.
Courts in numerous other states have rejected similar attempts to challenge scholarship tax credit programs using Blaine Amendments, and the U.S. Supreme Court ruled private school choice programs constitutional under the U.S. Constitution in 2002.
In Montana, the Attorney General’s Office warned that there was a “substantial likelihood that [the Montana Department of Revenue rule] would be held unconstitutional.” The department has never sought to apply such a rule to similar tax benefit programs—the College Contribution Credit, the Elderly Care Credit, and others—involving religious organizations in other policy areas.
Nevertheless, the department pressed ahead until three Montana families challenged the rule. A preliminary injunction was issued against the rule in March 2016, and a permanent injunction was subsequently issued by a district court judge in June 2017. MDOR appealed that decision to the Montana Supreme Court.
The legal question now at hand is whether the department’s rule violates religious protections in both the Montana Constitution and the U.S. Constitution. For us, the question is simpler: Will the Montana Supreme Court allow our state’s dedicated private school educators to do their jobs for the benefit of Montana students?
Each of us leads a private school in Montana. Our schools hold different sets of beliefs. We come from different political and philosophical backgrounds. Our schools use different educational models that fit our unique cultures and students. We are vastly different from one another. And we are but three of more than 100 Montana private schools among which parents can choose.
Montana’s private education sector is vibrant in its diversity. Indeed, one of the great strengths of private education in America is the freedom of schools to embrace a multitude of educational approaches. But despite our myriad differences, we are united by a single focus: Providing the kind of high-quality education Montana students need and deserve.
As the Montana legislature recognized when it passed our state’s scholarship tax credit program, students are not interchangeable widgets. What works for one student may not—indeed, often will not—work for another. As we consider our responsibility to educate the next generation of citizens and leaders, our response to this simple truth must be to provide as varied a menu of educational options as possible. Only by leveraging the power of diversity can we ensure that every Montana student has access to an education that suits him or her.
Yes, prohibiting students from choosing faith-based Montana private schools under the state’s tax credit scholarship program is likely unconstitutional. But more importantly, such a prohibition can serve only to restrict parents’ rights and hobble our state’s efforts to help as many students as possible build their own success stories with an education that meets their individual needs.
David Culpepper is Head of School for Foothills Community Christian School. Shaun Harrington is President of Billings Catholic Schools. Diann Floth is Head of School at Billings Christian School.