Montana’s recently-enacted scholarship tax credit law offers tax credits for private donations to a K-12 scholarship fund. The Montana Department of Revenue has imposed a rule barring students who choose to attend a religious school from getting the scholarship help. This discriminatory rule violates several provisions of the Constitution by explicitly singling out religion for disadvantageous treatment. The law expressly gives all Montana children between the ages of 5 and 19 the opportunity to go to any accredited private school, but the Department’s regulations severely limit the choices for Montana families.
For example, of the 139 private schools in Montana, only a third are eligible for scholarships under the no-religion rule. And many of those are Montessori, which rarely include students over the age of five. Put another way, the Department’s restrictive rule renders 88% of Montana’s private school students ineligible for the tax credit scholarship. That’s the opposite of what the Montana legislature intended.
Representing Kathy and Jerry Armstrong, the parents of a child in a faith-based school, along with the Association of Christian Schools International, PLF filed suit in federal district court to challenge the Department’s religion-based discriminatory rule. However, the federal court dismissed the case in deference to a similar state court case that also raises the question of whether the state regulation violates the federal constitution. Federal courts can refuse to hear a legitimate controversy because of a parallel state court case in only the rarest circumstances, none of which are present here. PLF appealed the dismissal to the Ninth Circuit Court of Appeals.