Montana's Constitutional Dilemma

Montana Supreme Court heard arguments on April 6^th, on which they determined whether Montana Constitution will allow for public funds to be given to private, religious education. The ACLU of Montana has filed under “friend of the court” in support of the defendant, the Department of Revenue. The Department of Revenue is arguing that tax-credit scholarships for religious schools violate Montana’s Constitution. The decision for this case is a landmark one for the state of Montana because of previous rulings by the DOR that tax credits for religious education scholarships are prohibited. They deem that these credits violate the state Constitution’s “No-Aid” clause.

Alex Rate who works for ACLU says that “Montana students and their parents have the right to choose a religious education, but taxpayers are not and should not be required to fund that decision. Religious freedom flourishes best when religion is funded privately, without support from taxpayers and the state.” ACLU Montana makes six points to defend why aid should not be allowed. They list the same reason Alex Rate said, as well as it being unconstitutional because of the express ban of public dollars to religious schools by Article X, Section 6 of Montana’s Constitution. They additionally say that religious coercion and discrimination could be funded, the state is indirectly paying for religious education, the state would be potentially allowed to dictate the curriculum of religious schools and that Montana’s public schools will be weakened if their already limited funding is diverted.

This issue is important in finding determining factors and evaluating the Establishment Clause for the future. Montana’s Constitutional Convention, previously in 1972, rejected allowing indirect state aid to fund religious education. However, in 1968, Board of Education v. Allen challenged the New York state’s program that required school boards to loan textbooks to public and private school students. The amount of Catholic schools that were attended caused various school board to address this as a violation of the Establishment Clause. In a 6-3 decision, the Supreme Court ruled that this was not a violation of the Establishment Clause. This was seen as aid to private and schools, but it served a legitimate secular purpose for promoting education. The same goes for a case that took place in 1947. Everson v. Board of Education touched upon New Jersey reimbursing money to parents who sent their children on buses operated by the public transportation system. 5-4, the court ruled that it did not violate the Constitution because it did not pay money to parochial schools directly. These two cases were perennial for cases that touched upon public funding to parochial schools.

With past precedent, Montana still denied the indirect aid of state funding to religious education. I understand where their decision was when they chose to deny indirect aid to private schools, however I don’t think it is the right decision. I think on case-by-case it is important to evaluate, but if there is reason for them to promote the general state of education then it is necessary. This is on display with Zelman v. Simmons-Harris. In 2002, Zelman v. Simmons-Harris incorporated the same debate, but this time with an emphasis on Ohio’s school voucher program.

Ohio’s Pilot Project Scholarship program provided people with tuition aid, so they could pick their educational preference. It was on a financial need basis, and it was the parent’s decision as to where their children went to school. It just so happened that 96% of the individuals that took part in this program chose religiously affiliated schools. Sixty percent of the individuals came from just at or below the poverty line. In a 5-4 decision, the Court held that it did not violate the Establishment Clause.  This is an important interpretation because it again reaffirmed that indirect aid to parochial schools helped advance the states agenda to provide sufficient education to children. Along with these cases, The US Supreme Court dismissed a lawsuit filed by taxpayers in Arizona who also challenged a state tax credit program. This resulted in another 5-4 decision too.

These cases provide many backings on the side of aid to private schools. I believe that allowing individuals to receive a tax credit does not harm anyone who decides not to aid private schools. Justice Kennedy in the Arizona case said that, “When Arizona taxpayers choose to contribute, they spend their own money, not money the state has collected from respondents or from other taxpayers.” This is my standing on this case, as well because I consistently agree across all the court cases that I presented that the claims that their is a violation are not sufficient enough to cause a violation of the Establishment Clause. Past precedents and more recent ones have helped me to build an argument in favor of the defendants in this case. The establishment clause should be deemed to not have been violated during this.