Missoula, Montana;  December 29, 2015: On behalf of a Missoula family with an eighth grader in a religiously affiliated school, along with a prominent association of Christian schools, Pacific Legal Foundation (PLF) has just filed a federal-court challenge to a bureaucratic regulation that would bar religiously affiliated schools and their students from participating in Montana’s new Scholarship Tax Credit program.  The discriminatory restriction, which violates federal constitutional protections and is not found in the scholarship program as enacted by the Legislature, was imposed earlier this month by the Montana Department of Revenue.

In filing a federal lawsuit against the anti-religious restriction, PLF represents Kathy and Jerry Armstrong of Missoula, who have a son in Missoula’s Valley Christian School; and the Association of Christian Schools International (ACSI), a nonprofit organization of faith-based schools which also serves as a school accrediting and licensing body.  Among the thousands of schools that ACSI serves nationwide, 10 are in Montana.

Donor-supported PLF is a nonprofit watchdog organization that litigates nationwide for limited government and individual rights, including educational choice.  PLF represents the Armstrongs and ACSI without charge, as with all PLF clients.

Filed late yesterday in U.S. District Court for the District of Montana, the lawsuit charges that the anti-religious regulation violates the U.S. Constitution’s guarantees of religious freedom and equal protection of the laws; and it violates the scholarship program’s purpose of expanding educational options for all Montana families with school-aged children.

“By singling out faith-based schools and their students for exclusion, the Department of Revenue is brazenly violating the Constitution,” said PLF attorney Ethan Blevins.  “Victims of this religious discrimination are turning to the courts for help, and PLF will represent them all the way to the U.S. Supreme Court if necessary.”

A promising school-choice program is ambushed by an anti-religious regulation

Enacted by the Montana Legislature this year, the Scholarship Tax Credit program is intended to promote expanded choice in K-12 education, by allowing individuals and businesses to donate to non-government, nonprofit scholarship organizations in return for an income tax credit.  The organizations, in turn, provide tuition scholarships to help students attend a private school of their choice.  Alternatively, a tax credit would be available for a comparable donation for innovative new programs at public schools.

The scholarship money for tuition is distributed directly to the private schools selected by the scholarship students and their parents.

The legislation says scholarship organizations may disburse funds to any “qualified education provider,” defined as any accredited private school.  However, the Department of Revenue’s new regulation arbitrarily excludes schools “owned or controlled in whole or in part by any church, religious sect, or denomination,” or accredited by a “faith-based organization.”

“A promising program for educational choice has been ambushed by an anti-religious bureaucratic regulation,” said Blevins.  “Faith-based schools and their students are being treated as second-class citizens.  The Department of Revenue isn’t just forcing them to the back of the bus — it is ordering them off the bus altogether.

“The Department is discriminating against some of the best schools in the state and the families who might want to choose them because of religious affiliation or merely because of their demonstrated academic quality,” Blevins continued.  “Valley Christian School, for example, where our clients Kathy and Jerry Armstrong send their son, is one of the top Christian schools in America.  There are 14 teachers for a student body of 60, and an impressive offering of AP courses, from English to Science, to Math.

“Nobody can question Valley Christian’s standards and quality, but a state bureaucracy is arbitrarily excluding the school from the tuition scholarship program simply because it has ‘Christian’ in its name,” said Blevins.  “We are suing because the Department needs remedial tutoring in the U.S. Constitution and its guarantees of equal rights and religious freedom.  The classroom will be a federal court.”

Unelected bureaucrats usurp the authority of the Montana Legislature

“Not only is the Department thumbing its nose at fundamental constitutional values, it is also usurping the authority of the Montana Legislature,” added PLF Attorney Wencong Fa.  “Unelected officials are taking on the role of lawmakers by rewriting the school choice program.  They’re inserting arbitrary restrictions into a program that was intended for all accredited private schools and their students, regardless of any religious affiliation.

“In doing so, the bureaucrats are basically gutting the program, by excluding roughly two-thirds of Montana’s private schools, including virtually every private high school,” said Fa.

In imposing the restriction, the Department has pointed to the state constitution’s prohibition on state funding of religious institutions.  “State bureaucrats are trying to defend their discrimination by wrapping themselves in the Montana Constitution,” Fa continued.  “It won’t work.  The state constitution’s prohibition on government subsidies for religion has absolutely no application to the scholarship tax credit program.  As the U.S. Supreme Court has put it, a tax credit system is a privately operated program, ‘implemented by private action’ and involves ‘no state intervention.’  In short, the Montana Constitution doesn’t call for the bureaucrats’ discriminatory regulation, and the U.S. Constitution positively forbids it.”

Statement from Kathy and Jerry Armstrong

“As parents who value quality education in every respect, we are very happy with the Valley Christian School, and we deeply object to state bureaucrats crossing it off the list for receiving private scholarship money, simply because it’s a Christian school,” said Kathy Armstrong.   “This kind of anti-religious bias is offensive to us as parents, as people of faith, and as Americans.   We are joining with Pacific Legal Foundation in this lawsuit, because the Department of Revenue can’t be allowed to engage in unconstitutional discrimination against us or any other families in this state.”

Statement from the Association of Christian Schools International

“School-choice plans give families more educational options, and that’s healthy for all schools, public and private,” said Philip Scott, In-House Counsel and Assistant Director for Legal Legislative Issues with the Association of Christian Schools International.  “But to offer a school-choice tax credit program, and exclude certain schools and students merely because they have a faith commitment, is counterproductive and wrong.  Our organization has a number of member schools in Montana.  All of them are excellent and academically rigorous.  But every one of them would be shut out from the scholarship program by this regulation, merely because they’re religiously affiliated.  We have joined with Pacific Legal Foundation to challenge this anti-religious restriction, and we’re doing this on behalf of everybody who believes in educational opportunity — and equal rights — for all.”

About Pacific Legal Foundation
Donor-supported Pacific Legal Foundation is a watchdog organization that litigates for limited government, property rights, and individual rights — including educational choice — in courts nationwide.  PLF represents all clients without charging attorneys’ fees.


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About Pacific Legal Foundation

Pacific Legal Foundation is a national nonprofit law firm that defends Americans threatened by government overreach and abuse. Since our founding in 1973, we challenge the government when it violates individual liberty and constitutional rights. With active cases in 34 states plus Washington, D.C., PLF represents clients in state and federal courts, with 18 wins of 20 cases litigated at the U.S. Supreme Court.

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