State Plan Bans Religious School From Scholarship Program


A fight is brewing in Montana over a state Scholarship Tax Credit program proposed by the Department of Revenue that would exclude some schools because of their religious affiliation.

The Pacific Legal Foundation says it will oppose the plan because it would violate the U.S. Constitution’s guarantees of religious freedom and equal protection.

The state agency has scheduled a hearing at which a lawyer for PLF will testify.

The stated goal of the program is to expand educational choices and opportunities for Montana families and school-age children, but some schools would be left out.

PLF is representing the Association of Christian Schools International, an organization of faith-based schools that also acts as an accrediting and licensing body. There are 3,000 schools across the United States in the association, including 11 in Montana, which would not benefit from the program.

“These regulations are unfair and unjust because they limit the educational choices that the Legislature sought to offer Montana’s families, particularly low-income households,” said PFL lawyer Wen Fa.

“In fact, of the 139 schools on the state’s list of private schools in Montana, more than two-thirds would be excluded from the scholarship program because they have religious affiliations. It appears that 88 percent of students who are currently in non-public schools would be denied the opportunity to apply for the tax credit scholarship, simply because of the religious affiliation of their schools.”

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The program, to be launched at the beginning of 2016, allows individuals and businesses to donate to non-government, nonprofit scholarship groups in return for a tax credit.

The organizations then give tuition scholarships to help students. The money is given directly to the schools selected by students or their parents.

But the restriction on religious institutes is “flat-out unconstitutional,” Fa said.

“By excluding schools and students from the scholarship program based solely on the schools’ religious affiliations, state bureaucrats would be violating the Constitution’s guarantees of religious liberty and equal protection of laws for all people regardless of their faith or their philosophical viewpoints. If the Department of Revenue insists on adopting these regulations, it will be inviting a federal constitutional lawsuit under the First Amendment and Equal Protection Clause,” Fa said.

The law actually says any “qualified education provider,” which is defined as an accredited private school, can participate.

But PLF said the problem comes with the regulations that have been proposed, which would exclude schools “owned or controlled in whole or in part by any church, religious sect or denomination,” or accredited by a faith-based organization.

“Unelected bureaucrats cannot be allowed to undermine a promising school choice program, especially with restrictions that punish people based on their religion,” said Fa. “Either the agency withdraws these unseemly and unconstitutional proposals, or it will need to answer for them in court.”

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