Montana Tax Credit Scholarship Program Reinstated by District Court

(Photo: Andrew Pons, Creative Commons)

(Photo: Andrew Pons, Creative Commons)

A Flathead County District Court judge has ruled that students who attend religious schools should be allowed to receive scholarships offered by the Montana school choice program that went into effect in January.

The preliminary injunction was dispensed by the court to block the Department of Revenue (DOR) from imposing its new rule that prohibits students who attend religious schools from obtaining the scholarship. The injunction will stay in place until the court rules otherwise, said Judge David Ortley.

Holly Michels, writing for The Montana Standard, reports that the program in question was established in May 2015 to give tax credits of up to $150 to donors and persons who donate to private scholarship groups. Those organizations give money to families interested in having their children go to private schools.

But the Department of Revenue has said that a provision in the state constitution says “any direct or indirect appropriations or payment” from the government to religiously affiliated schools or religious institution is not allowed.

The bill creating the pilot program was written by Sen. Llew Jones (R-Conrad), who said the department’s rules to pass the law did not follow the intent of the legislature. The rules were ratified in December.

The lawsuit was filed by Attorney Dick Komer of the Institute for Justice, a Virginia-based legal firm that argues for school-choice programs. He represented three mothers who had children who attended Stillwater Christian School and wished to have the scholarships for their kids.

One of those moms, Kendra Espinoza, expressed her gratitude for having the opportunity of a chance for the scholarship for her daughters. She has taken on a second job and sponsored fundraisers to pay tuition for her girls at the private Kalispell school.

Komer explained more fully that the state law bars grants to religious entities and that the scholarships are given to families, not to the schools.

Tax credits are not appropriations, said the Montana District Court in 2012. But the state Supreme Court did not govern on the tax credit component, which leaves it open to interpretation, according to the department.

Heather Kays of the Montana Watchdog quoted Komer, who said:

“When you exclude the religious school segment of the school marketplace, you are severely limiting the number of options where parents can send their children. By taking this step of writing an administrative rule, the DOR was acting, to put it in Latin, ultra vires, meaning acting on its own outside its delegated authority.”

Programs like the Montana school choice plan have made it through the court systems in other states.

The DOR, notes Mary Ann Dunwell, a spokesman for the Revenue Department, is reviewing the decision and looking into its options. But the department is sticking to its interpretation of the Montana Constitution.

“The premise of the department’s rules for administering the new law remains the same,” the department said in a statement.

The bill became law but was not signed by Gov. Steve Bullock because he was concerned “about using public resources for private education,” but he did back the part of the bill that allowed taxpayers to steer dollars toward building innovative programs in local public schools, reports Bobby Caina Calvan for the Associated Press.

The Montana Family Foundation President Jeff Laszloffy said the ruling was a victory for parents and their children. He stated that this was an open door for students to succeed whether they need private or public schools.