PLF sues over discrimination against religious students

PLF sued the Montana Department of Revenue yesterday to fight a rule that forbids children who want to attend religious school from getting scholarship assistance.

In May 2015, Montana became the 43rd state to adopt a school choice law. The law creates a tax incentive for individuals and businesses to donate money to a scholarship fund to help kids afford private school. The program offers a dollar-for-dollar tax credit–up to $150–for donations to student scholarship organizations, which then offer scholarships to K-12 students who want to attend private school.

But the Montana Department of Revenue cooked up a rule that cripples the program and imperils constitutional liberties. The rule bans religious schools from participating in the program. Most of Montana’s private schools are religious, so the ban has whisked away most of the choices from Montana’s first school choice experiment before students can even apply for aid.

The ban has waded into a briar patch of legal problems. Our lawsuit, filed in federal court, makes four claims. First, the religious school ban violates the right to the free exercise of religion guaranteed by the First Amendment. The rule does not forbid attendance at religious school, but it penalizes kids who do choose a religious school by denying them access to scholarship help.

The rule also violates the First Amendment’s Establishment Clause by inhibiting religion. Just as Montana can’t favor religions, it can’t single out religion for disfavor. The religious school ban imposes hardships on religious schools solely because of their belief system. The First Amendment forbids this kind of official hostility toward religion.

The religious school ban also violates Equal Protection under the Fourteenth Amendment. Ever since Brown v. Board of Education, we as a nation have committed to eradicating discrimination in our schools. That commitment extends to both racial and religious discrimination. The Department of Revenue can’t force religious school students to sit at the back of the bus.

PLF has also raised a state law claim that the Department of Revenue has exceeded its own authority. Agencies can make rules to implement and enforce a law, but the rules can’t contradict the law. Otherwise, bureaucrats could trump the democratically elected legislature. Here, the school choice statute expressly forbids discrimination among schools in the disbursement of scholarship funds. Now the Department of Revenue requires it. This collision with legislative intent won’t end well for the Department.

The Department’s answer to each of these legal problems is the same: the Montana Constitution requires them to exclude religious schools. The Montana Constitution says the government cannot use public funds to aid religious institutions. For at least three reasons, this prohibition has nothing to do with Montana’s scholarship program. First, the money donated under the scholarship program comes from private donors, not the public fisc, so the program does not result in public funding of religion. Second, religious schools would receive scholarship funds through the independent choices of students, not through government edict. And third, the Montana Constitution shouldn’t be read to forbid aid provided to secular and religious institutions on an equal basis. Otherwise, the Montana Constitution would forbid churches and the like from receiving police and fire protection, sewer hookups, and other basic government benefits.

Montana’s scholarship program deserves a chance. By reviving the spirit of competition among schools, school choice has improved education across the country in both private and public schools. It has also expanded access to quality education for more kids, regardless of their socio-economic background. PLF plans to make sure the Department’s bald discrimination won’t deprive Montana’s kids of these same opportunities.