October 2019 Church & State Magazine | Cover Story

In the coming months, private school voucher advocates will go before the U.S. Supreme Court in an attempt to connect a church preschool’s playground in Missouri to a private Christian school in Montana.

Depending on whether and how that connection is made, the justices could issue a decision that protects the religious freedom of Montana taxpayers – or they could further erode the separation of religion and government not just in Montana, but in three-quarters of U.S. states.

Supreme Court

The case, Espinoza v. Montana Department of Revenue, revolves around the “no-aid” provision in Montana’s state constitution that protects residents from being forced to fund religious education or any other religious purposes.

The no-aid clause clearly is a core, traditional value for Montanans: Not only was it included in Montana’s first constitution when it became a state in 1889, but citizens kept a similar clause in the amended constitution they ratified in 1972. Article X, Section 6, of the modern constitution reads: “The legislature, counties, cities, towns, school districts, and public corporations shall not make any direct or indirect appropriation or payment from any public fund or monies, or any grant of lands or other property for any sectarian purpose or to aid any church, school, acad­emy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

That clause protects both religious freedom and public education by ensuring that public money can’t be diverted away from public schools to fund religious education through private school voucher schemes.

In 2015, legislators tried to circumvent their own constitution by creating a neo-voucher scheme called the Montana Tax Credit Scholarship Program. Rather than directly paying for students’ private school tuition from the state treasury, the tax credit program essentially launders the money by using private intermediaries to divert tax money that would be owed to the state to subsidize private school tuition. The end result is the same – taxpayer funds support private, mostly religious education rather than the public schools that educate the vast majority of Montana students.

Legislators didn’t hide that they were trying to get around the constitution by funneling the money through intermediaries. State Sen. Llew Jones (R-Conrad), the sponsor of the tax-credit legislation, noted during a legislative hearing that lawmakers couldn’t “give the money directly” for religious education. In a government proceeding a few months later, Jones said preventing religious schools from participating in the tax credit program was “intentionally ignoring [the] intent” of the program. But using intermediaries to make the voucher scheme  work still clearly violates the state constitution, which doesn’t permit direct or indirect public funding of religion.

The Montana Department of Revenue understood that the tax credit program ran afoul of the no-aid clause and so would not let the program’s vouchers be used at private religious schools; only the state’s few secular private schools could participate (nearly 90 percent of Montana’s private schools reportedly are religious).

That’s when the Institute for Justice stepped in. The Virginia-based legal organization that advocates for private school vouchers filed a lawsuit on behalf of three parents whose children attend Stillwater Christian School in Kalispell and want to use the vouchers to reduce their tuition fees.

The plaintiffs tried to argue that their case was bolstered by the U.S. Supreme Court’s 2017 decision in Trinity Lutheran Church v. Comer, in which the justices said a Missouri church preschool was eligible for a state grant to resurface its playground. While the Trinity Lutheran decision was a blow to the separation of religion and government, the court’s narrowly tailored decision did not gut Missouri’s constitutional no-aid provision as some religious extremists and voucher proponents had hoped.

In Trinity Lutheran, the Supreme Court permitted government funding for a non-religious purpose only – that’s quite different from allowing taxpayer money to fund explicitly religious education. In a friend-of-the-court brief in the Montana case, Am­ericans United, joined by the American Civil Liberties Union, the ACLU of Montana and the Anti-Defamation League, held that the Trinity Lutheran opinion did not invalidate Montana’s no-aid provision or permit Montana to fund private religious education.

“Montana students and their parents certainly have a fundamental right to choose a religious education, but not at the state’s expense,” the brief read. “Montana’s government is expressly barred from providing ‘direct or indirect’ aid for religious education.”

The Montana Supreme Court agreed with AU and struck down the voucher program in an opinion issued last December: “We ultimately conclude the Tax Credit Program aids sectarian schools in violation of Article X, Section 6, and that it is unconstitutional in all of its applications.”

Montana taxpayers should never be forced to fund religious education – that’s a fundamental violation of religious freedom. The Montana Sup­reme Court’s decision protects both church-state separation and public education. It’s a double win.

~ AU President & CEO Rachel K. Laser

Americans United President and CEO Rachel Laser hailed the decision: “Montana taxpayers should never be forced to fund religious education – that’s a fundamental violation of religious freedom. The Montana Sup­reme Court’s decision protects both church-state separation and public education. It’s a double win.”

But the Institute for Justice appealed the decision to the U.S. Sup­reme Court, claiming that not including religious schools in Montana’s private school voucher program violates their clients’ religious freedom. In its petition to the high court, the organization also acknowledged that Trinity Lutheran did not explicitly permit public funding for private religious education and urged the court to take the case because “courts remain conflicted regarding whether government may bar religious options” in private school voucher programs.

On June 28, the Supreme Court agreed to hear the case during its 2019-20 term that begins this month. The two sides will likely argue the case before the justices in early 2020; the court is expected to issue an opinion by the end of next June.

Americans United plans to file another friend-of-the-court brief in the case, explaining why the high court should uphold Montana’s no-aid provision and affirm that it protects taxpayers’ religious freedom by ensuring they are not forced to fund religious education with which they may not agree.

“Tuition-tax credit programs like Montana’s are a transparent attempt to circumvent state constitutions that prohibit public funding of religious education,” AU Associate Legal Director Alex J. Luchenitser has said of the case. “The Montana Supreme Court correctly saw through this money-laundering scheme.”

Tuition-tax credit programs like Montana’s are a transparent attempt to circumvent state constitutions that prohibit public funding of religious education. The Montana Supreme Court correctly saw through this money-laundering scheme.

~AU Associate Legal Director Alex J. Luchenitser

While the efficacy of private school voucher programs is not likely to come up in Supreme Court arguments, Ameri­cans United and the National Coalition for Public Education that AU co-chairs have outlined numerous reasons why voucher schemes should be rejected above and beyond the violation of taxpayers’ religious freedom.

Extensive research into voucher programs across the country has consistently revealed that vouchers don’t improve – and in some cases harm – stu­dents’ academics. Vouchers also fund private schools that are poorly regulated and unaccountable to taxpayers.

Additionally, public schools must accept all students and protect their civil rights, while private schools funded by vouchers may discriminate against LGBTQ students and families, or against students with disabilities. And many of the private religious schools funded by vouchers teach religious tenets and a religion-infused curriculum.

For example, the Stillwater Christian School that the Montana plaintiffs’ children attend describes its mission “to equip students with the tools for learning through a Christ-centered, academically enriching, education where each discipline is subject to the authority of God’s Word.” The school in northwestern Montana was described by the Flathead Beacon as the biggest K-12 private school in Montana, with more than 330 students enrolled last year.

The school’s website does not explicitly say whether it would turn away an LGBTQ student or the child of same-sex parents, but its student handbook requires both students and parents to sign their agreement with the school’s statement of faith. The list of 11 religious tenets includes “We believe that God created marriage to be exclusively the union of one man and one woman, and that intimate sexual activity is to occur exclusively within that union.” The handbook also spells out an anti-transgender bathroom policy that requires students to use facilities “conforming with their biological sex.”

On the school’s employment application, a prospective employee must declare that “I am a ‘born-again’ Christian who knows the Lord Jesus Christ as Savior” and also agree with the statement of faith.

As Americans United and other religious freedom advocates have repeatedly explained, taxpayer dollars should never be used to fund private religious education, nor should the government fund schools or organizations that discriminate.

The Institute for Justice has made clear that it wants to pave the way for private school vouchers not only in Montana but across the country by gutting the no-aid provisions that exist in the constitutions of nearly 40 states.

“If the court rules in our favor, we expect their decision to make clear that government cannot exclude religious options” in private school voucher programs, Institute attorney Erica Smith told the Daily Inter Lake newspaper in Kalispell.

The harm such an outcome could cause is a concern not just to religious freedom advocates, but to supporters of public education as well.

In a June statement in response to the court’s announcement that it would hear the case, Montana Federation of Public Employees President Eric Feaver said, “The Supreme Court’s decision is sad and troubling. It suggests Montana’s Constitution may be at risk right along with our public schools. It suggests extraordinary federal intrusion into the constitutional and public school affairs of this state and perhaps many others.”