Friday, February 19, 2016

School Choice or Violation of the First Amendment?

Last year Montana joined over 40 other states in implementing a program to help students and their families secure school choice. The Montana legislature passed a law creating a scholarship program that would be used to help families who could not afford to send their children to their school of choice. The scholarship program relied on donations from private individuals and businesses who would receive a tax credit up to $150 in return for their donation. Scholarships would then be distributed to help families send their children, grades K through 12,  to the private school of their choosing.


The new program was to go into effect on January 1st of this year. While many were initially excited about the school choice program, things became more complicated in December 2015. The Montana Department of Revenue made a rule saying that the scholarship program does not extend to any schools “owned or controlled in whole or in part by any church, religious sect, or denomination.” In the state of Montana, nearly two-thirds of private schools are religiously affiliated, so this rule majorly restricts the choices families have when using this scholarship program.

Following the implementation of this rule, a group of families and Christian schools have sued the Montana Department of Revenue. They are represented by the Pacific Legal Foundation (PLF), who strongly believes that this rule violates both the free exercise of religion and the establishment clause guaranteed by the First and Fourteenth Amendments. Just last week, the PLF testified in federal court aiming to get the Montana Revenue Service to freeze the rule until the details of the case have been decided. The Montana Revenue Service believes that this rule is a necessary edition to the tax-credit scholarship program in order to prevent public funds from being used to benefit religion. They argue that they are following the Montana State Constitution since it clearly forbids public funding of religious institutions.


The PLF argues that the claims of the Revenue Service are flawed since none of the money going into the scholarship fund is public money, but rather a private donation. Additionally, the government does not direct the money to a religious institution since the school choice is ultimately up to the student receiving the scholarship and his family. The PLF believes that this rule causes families who need financial assistance for schooling to feel pressured to abandon their desire to attend a religious school. Furthermore, schools looking to attract students who need financial assistance will need to abandon their religious affiliation in order to do so. The PLF sees this as a clear violation of the Free Exercise of religion. In terms of the establishment clause, they argue that religious schools are being denied benefits solely because of their religious beliefs, which they see as an unfair favoring of secular schools.

The main issues in this case come down to two questions: Is prohibiting private religious schools from this scholarship program an unconstitutional violation of the free exercise and establishment clauses? And, would the government be illegally funding religion by providing tax-credits to individuals who make private donations to a scholarship fund that may help students to attend a religious school?

I believe that excluding religious schools from this scholarship program is an unconstitutional violation of the first amendment on behalf of students. A very important point to consider here is what constitutes public aid of a religion. If the government were giving religious schools money to use as scholarships to attract students, then the government would be aiding religion beyond their ability. However, in this case, the scholarship money does not at all come directly from the government. The scholarship money comes completely from individuals who freely choose to donate to the fund.  The so-called “aid” only results from the tax-credit that individuals receive after making their donation. This tax-credit does not go to a religious school, but rather back to the individual who chose to make the donation. No public funds are used to finance a scholarship, so the state of Montana is not using public funds to support a religious institution in any way and therefore is not violating its state Constitution or the 14th amendment.

This case is similar to the case of Everson v. Board of Education of Ewing Township, which held that reimbursing parents of students for public transportation to a religious school is not unconstitutional. The court ruled that the First amendment does not prohibit this general program that extended to public and other schools. Families could not be excluded from these transportation reimbursements because of their religion as this would inhibit their free exercise and would be an unequal treatment of religion and non-religion. Similarly, in this case, religious private schools should not be prohibited from a general scholarship program that applies to all private schools. This would be limiting free exercise of religion for families choosing their schools because they may feel pressured to abandon their desire to attend a religious school in order to obtain a scholarship. Furthermore, this would not represent a neutral stance between religious and non-religious private schools since religious private schools are being excluded from a program solely because of their religion. The lack of a neutral stance between religion and non-religion violates the establishment clause of the first amendment, just as it did in Everson v. Board of Education of Ewing Township.

Overall, I believe that the rule prohibiting religious schools from this scholarship program is faulty on a few accounts. First, the Department of Revenue’s claim that the program would be an illegal public funding and support of religion is wrong since the scholarships come from completely private donations and the tax-credits go to individuals who make the donations, not the schools. Second, eliminating religious schools from the program inhibits free exercise of religion by pressuring students who need financial assistance not to choose a religious school. Lastly, in restricting religious schools from participating in this program, the government is not maintaining neutrality between religion and non-religion, as the establishment clause suggests it should. For these reasons, I believe that the Department of Revenue’s rule violates both the free exercise and establishment clauses of the First Amendment and that repealing the rule would not lead to an illegal funding of religious institutions by the Montana state government. 


So, what do you think?

4 comments:

Sarah A said...

While I can see the similarity to the Emerson case, I have to disagree with you. The important distinctions that I find are small but crucial. You claim that no public money is going to the religious school, but indirectly, but having tax breaks for donations, the state is losing money at the expense of furthering religion. Because of this, money is in fact going towards religion, which I would argue acts as an establishment of religion. Unlike the Emerson case money is going directly to the school and therefore the religious schooling. In Emerson, the money went to the parents and provided all student with buses to school, regardless of their religion, which I think is an important distinction.

Houtan Bozorghadad said...

I also disagree with you because like Sarah already mentioned, individuals and organizations receive tax breaks if they make donations to his program. The government is indirectly aiding religion because they are giving money to the people and organizations that are giving money to these religious institutions, so it is an establishment of religion. Also, if this is a government run program, than Montana would be entering very tricky territory if they allowed religious schools to receive aid from this program because it would then be difficult to determine when a government can aid a religious institution or religious school without establishing a religion.

Matthew L. said...

Unlike the previous two comments, I agree with your decision that the program should include the religious affiliated schools. A point to be made here is in consideration of the alternative. To make this point, one must refer back to, and establish that this program is for families who would be unable to send their children to private school should they not receive these private donations. In receiving these donations, the families are now able to send their child(ren) to these newly available schools. Therefore, the decision comes down to public school, where the students are attending for free because their parents' taxes are paying, or a privately funded school. In this, and considering that the scholarships are not given by the state, but by private benefactors, you can see where the state will benefit from this program. Across the nation, the average cost to the state per student is $10,000. When considering this cost, and the fact that the tax rebate is capped at $150, and it is likely much smaller than a $1:$1 credit dollar per dollar donated ratio. In this, as well as the fact that the scholarship applies to all religious affiliated schools, and not only those of a certain religion, makes this program rational, as well as Constitutional. Moreover, I believe that your Everson comparison did well to relate this issue to one of our cases. As many may have seen when they read the article, the money does not go directly to the institution; however, the money is transferred to the parents to be applied to their school of choice. Therefore, the money is not transferred from the government to the institution directly; but rather, it is given to the parents who can then choose where to send their child, with options ranging from an unassociated private school to a possibly religious institution of any religion.

Maddie G said...

I agree with Becca here. As long as the money is donated to the fund is a private donation and the parents and children receiving the money get to choose the school where the money will be used as tuition, I do not see this program as violating the first amendment. Some students may not have the financial means to attend a private school but if they wish to take the initiative to apply to and get accepted to one. As long as they and their parents are choosing the school, I see no problem.