November 17, 2015

Genuine school choice in Montana faces a new threat

By Ethan W. Blevins Attorney

A proposed rule in Montana is threatening to geld the state’s fledgling school choice law. Montana passed a scholarship tax credit law earlier this year. The program offers tax credits for donors who contribute to the program. The money goes to student scholarship organizations, which provide tuition assistance for students who want to attend a private school.

But the Montana Department of Revenue has proposed a rule that would exclude all religious schools from the program. If a school is owned or controlled in whole or in part by a religious institution, a student cannot use the program’s tuition boost to attend there.

PLF urged the Department of Revenue in recent oral testimony and today’s written testimony to eschew this discriminatory policy. The proposed rule oversteps the Department’s authority and imperils constitutional rights.

Agencies are not lawmakers. Our government separates the powers to make laws, enforce laws, and adjudicate laws in order to prevent the abuse of authority. Agencies can make rules to help administer the law. They can’t amend it or repeal it.

Yet the Department of Revenue has plans to rewrite a law designed to foster choice by sweeping away most of the choices. The rule would remove two-thirds of Montana’s private schools from the program. The Department can prune this tree to encourage growth and efficiency. But it can’t chop the tree down and call it good gardening.

The statute actually says that student scholarship organizations can’t play favorites among private schools. Ironically, the arm tasked with enforcing this non-discrimination rule is the Department of Revenue! It’s hard to believe the Legislature would want the agency assigned to prevent discrimination to now mandate it. The Department can’t usurp the Legislature’s power by amending the law.

The proposed rule also raises serious constitutional concerns. By excluding religious schools from a source of private funding, the rule imperils religious liberty and equal protection. The rule tells students, “If you want this program’s help to attend the school of your choice, you have to give up your right to choose a religious school.” It tells donors, “If you want to give to students who want to attend religious schools, you can’t get a tax credit.” It tells schools, “If you want low-income students receiving tuition assistance through this program, you need to abandon your religious affiliations.”  This bald discrimination hinders the free exercise of religion and treats religious families and schools on an unequal footing.

The Montana Department of Revenue claims that its program prevents taxpayer dollars from funding religion. But the money here comes from private donations. It never touches a public coffer. Plus, the rule excludes schools with religious ties even if their curriculum is completely secular. The Department can’t justify this discrimination by pretending to stop tax dollars from supporting religious indoctrination.

According to the Department, Montana families may only choose a school the government approves. It so happens that the government only approves of schools with no religious affiliation. This bald discrimination upends the Legislature’s intent to expand educational choice and defies our constitutional values of religious liberty and equal protection. We hope the Department will heed our plea to reject this dim specter of genuine choice.

 

 

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