Sometimes federal courts will dodge the Constitution rather than defend it. That happened with our constitutional challenge to Montana’s discriminatory school regulations. Yesterday, in Armstrong v. Kadas, we filed a brief asking the Ninth Circuit to remind the district court of its duty to exercise its jurisdiction–especially over constitutional cases.
Armstrong involves Montana’s fledgling school choice movement. Last year, Montana passed a scholarship tax credit program. Taxpayers receive a tax credit when they donate to a K-12 scholarship fund. That money help families afford private schools normally open only to the rich.
But the Montana Department of Revenue crippled the program before it even started. The Department made a rule barring students who choose to attend a religious school from getting the scholarship help. This discriminatory rule violates families’ First Amendment rights by denying a benefit just because of their religious choices. We represent the Armstrong family, who pay a heavy price to educate their son at a religious school, along with Association of Christian Schools International.
Sadly, the Court punted. The federal court decided to dismiss our case and let a similar state court case deal with whether the state regulation violates the federal constitution. Federal courts can refuse to hear a legitimate controversy because of a parallel state court case in only the rarest circumstances. Those circumstances only arise if:
- the case hits upon on a sensitive social policy that federal courts should avoid;
- the state court’s decision could avert the need to resolve the constitutional issue; and
- the correct answer to a key state law question remains uncertain.
The Montana school choice case doesn’t satisfy this test. The Ninth Circuit has said that First Amendment cases almost never meet the “sensitive social policy” factor. If a plaintiff suffering government suppression of expression or religion must wait for state proceedings to drag on, the constitutional injury festers. That delay itself harms the very right the Armstrongs ask the court to protect.
And we have no uncertain state law question here. Everyone agrees the Montana regulation excludes religious schools. No state court could reasonably say otherwise. The only question that remains is whether religious discrimination violates the Constitution. The federal court has a duty to answer.