Anti-religious discrimination harms school choice

January 27, 2016 | By RAYMOND NHAN

In celebration of National School Choice Week, PLF attorneys are highlighting a number of important school choice cases. Two important pending cases come from Montana and Colorado.

Last year, the Montana Legislature established a tax credit scholarship program that provides tax credits to donors who contribute to the scholarship program. The money then goes to tuition assistance for students seeking to attend private schools. But at the end of 2015, the Montana Department of Revenue passed a new regulation that excludes all students attending religious schools from participating in the tax credit program. Based on this new regulation, many students will be unable to go to the school of their choice simply because of the school’s religious affiliation. PLF recently filed suit in the Federal District Court of Montana challenging this regulation, arguing that it unconstitutionally discriminates against religion.

The Montana case involves government discrimination against religion in the application of a neutral and secular program. Anti-religious discrimination in education is nothing new. The Montana case is similar to another school choice case decided by the Colorado Supreme Court in 2015, Doyle v. Taxpayers for Public Education.

In Doyle, the Douglas County Board of Education launched a Choice Scholarship Program to give parents more flexibility to meet the individual educational needs of their children. Eligible students who receive a scholarship are able to attend qualifying religious or non-religious schools. The Board distributes money to parents, who must use it to pay part of the tuition at the private school of their choice. But the Colorado Supreme Court held that the Choice Scholarship Program violated Article IX, section 7 of its state constitution because it provided aid to religion.

Article IX, section 7 of the Colorado Constitution is a “Blaine Amendment.” Amid a sea of anti-Catholic resentment in the 1870s, Senator James Blaine attempted to amend the United States Constitution to prohibit any spending on religious schools. At the time, it was understood that this constitutional amendment would have only barred states and localities from supporting Catholic institutions; Protestant institutions would be unaffected by this amendment. The Blaine Amendment was specifically targeted at restricting Catholic involvement in the public sphere. Though Senator Blaine’s push to amend the constitution was unsuccessful, many states picked up the anti-Catholic sentiment and incorporated Blaine Amendments into their state constitutions. But today, these Blaine Amendments are not just used to discriminate against Catholics; they are used to discriminate against all religions.

The First Amendment and Equal Protection Clauses of the United States Constitution prohibit states from discriminating between religion and non-religion. Though a state can put reasonable limits on how the scholarships are used, it may not discriminate against religious institutions. So while the state may decline to fund devotional training, it may not target religion for different treatment. While many years have passed since Colorado’s Blaine Amendment was ratified, its discriminatory roots render the law unconstitutional.

The Montana Legislature passed a law providing tax credits to those who contribute to a religiously neutral aid program. But the fact that the Montana Department of Revenue specifically singled out religious schools for different treatment shows that anti-religious motivations are alive and well. Anti-religious discrimination is not confined to 19th Century Americans. Montana’s regulations violate the 14th Amendment’s Equal Protection Clause, and the 1st Amendment’s Free Exercise and Establishment Clauses.
Regardless whether it is a tax credit or scholarship program, the Constitution prohibits treating religion differently from an otherwise neutral aid program. But that is the effect of both Montana’s regulation and Article IX, section 7 of the Colorado constitution.