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Supreme Court rules private school scholarship tax credit is unconstitutional

Wednesday, December 12, 2018   (0 Comments)
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The Montana Supreme Court on Wednesday ruled that a tax credit for donations to a private school scholarship fund passed by the 2015 Montana Legislature is unconstitutional.

The 5-2 decision concludes that the program aids sectarian schools in violation of Article X, Section 6, of the Montana Constitution, overturning a ruling from the 11th Judicial District.

The Montana Department of Revenue determined that the tax credit was constitutional unless religiously affiliated schools were excluded as qualifying education providers. Parents of children who attend a religiously affiliated private school challenged the decision, arguing it violated free exercise clauses of the Montana and U.S. Constitutions.

District Judge Heidi Ulbricht agreed with the plaintiffs. The Department of Revenue appealed to the Montana Supreme Court.

The case has attracted statewide and national attention, with at least eight friend-of-the-court briefs filed, including from the American Civil Liberties Union, public education proponents, religious liberty organizations, education choice groups, and the U.S. Department of Justice.

The Institute for Justice, out of Arlington, Va., which represents the parents in the suit, said in a news release that it will appeal to the U.S. Supreme Court. Attorney Erica Smith said that the court's decision misinterprets the Montana Constitution and ignores provisions for religious freedom in the U.S. Constitution.

Kendra Espinoza, one of the parents who brought the suit, said she was surprised by Wednesday's decision.

"This is not the result we expected from the state Supreme Court," Espinoza said. "The court’s ruling discriminates against religious families and every Montana child who is counting on these scholarships."

Justice Laurie McKinnon wrote the opinion for the majority, with Justice Ingrid Gustafson and Chief Justice Mike McGrath writing special concurrences.

Justice Beth Baker dissented, with Justice Jim Rice specially dissenting.

Read the full opinion: espinoza_v_dor.pdf