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 1^st 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 14^th 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?