Press Release

PLF warns against anti-religious restrictions on MT scholarship tax credits

Helena, Montana;  November 4, 2015: Tomorrow (Nov. 5), at a hearing before the Montana Department of Revenue, an attorney with Pacific Legal Foundation (PLF) will testify against the Department’s proposal to ban religious-based schools and their students from participating in Montana’s new Scholarship Tax Credit program.

PLF Attorney Wen Fa will argue that this proposed regulation violates the program’s intended purpose of expanding educational choices and opportunities for Montana families and school-aged children; and that it violates the Constitution’s guarantees of religious freedom and equal protection of the laws.

Donor-supported PLF is a nonprofit watchdog organization that litigates nationwide for limited government and individual rights, including educational choice.

In opposing the regulations, PLF represents the Association of Christian Schools International, a nonprofit organization of faith-based schools which also serves as a school accrediting and licensing body.  Its membership includes 3,000 schools across America, with 11 in Montana.

“These regulations are unfair and unjust because they limit the educational choices that the Legislature sought to offer Montana’s families, particularly low-income households,” said Fa.  “In fact, of the 139 schools on the state’s list of private schools in Montana, more than two-thirds would be excluded from the scholarship program because they have religious affiliations.  It appears that 88 percent of students who are currently in non-public schools would be denied the opportunity to apply for the tax credit scholarship, simply because of the religious affiliation of their schools.

“These restrictions are flat-out unconstitutional,” Fa continued.  “By excluding schools and students from the scholarship program based solely on the schools’ religious affiliations, state bureaucrats would be violating the Constitution’s guarantees of religious liberty and equal protection of laws for all people regardless of their faith or their philosophical viewpoints.  If the Department of Revenue insists on adopting these regulations, it will be inviting a federal constitutional lawsuit under the First Amendment and Equal Protection Clause.”

The Department of Revenue hearing at which Wen Fa will testify tomorrow starts at 1:30 p.m., in the Fourth Floor East Conference Room of the Sam W. Mitchell Building, located at 125 North Roberts in Helena.

Before the hearing — at 12:45 p.m. — Wen Fa will be available for comments to the media, and interviews, outside the Mitchell Building, on the North Roberts sidewalk.

Unelected regulators attempt to undermine the scholarship law

Enacted by the Montana Legislature this year, and due to take effect at the beginning of 2016, the Scholarship Tax Credit program is intended to encourage educational choice, by allowing individuals and businesses to donate to non-government, nonprofit scholarship organizations in return for a corresponding income tax credit.  The scholarship organizations, in turn, provide tuition scholarships to help students attend a public or private school of their choice.

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

The legislation says scholarship organizations can disburse funds to any “qualified education provider,” which it defines as any accredited private school.

However, the regulators of the Department of Revenue have proposed to exclude schools that are “owned or controlled in whole or in part by any church, religious sect, or denomination,” or that are accredited by a “faith-based organization.”

“Unelected bureaucrats cannot be allowed to undermine a promising school choice program, especially with restrictions that punish people based on their religion,” said Fa.

“Either the agency withdraws these unseemly and unconstitutional proposals, or it will need to answer for them in court.”

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.

Case Attorneys

Ethan W. Blevins


Ethan Blevins joined PLF’s Pacific Northwest office in August 2014. He litigates cases involving the First Amendment, property rights, school choice, and the separation of powers. Ethan began his trek … ›

View profile

Joshua P. Thompson

Senior Attorney

Joshua Thompson joined Pacific Legal Foundation in August 2007. He primarily litigates cases involving equality under the law, economic liberty, school choice, and coastal land rights. Joshua was raised in … ›

View profile

Case Commentary

See all posts

By James S. Burling

Weekly litigation report — November 12, 2016

  • School choice in Montana
  • Discrimination in government contracting
  • Waters of the United States

School choice in Montana

We filed this reply brief in Armstrong v Kadas, our challenge to the Montana Department of Revenue’s attempt to undercut a voter initiative to establish tax credits to be used to help parents send their children to schools of the parent’s choice After the Department adopted a regulation to eliminate all parochial schools from the program, we sued

Discrimination in government contracting (more…)

Read more

By James S. Burling

Weekly litigation report — September 2, 2016

  • School choice in Montana
  • Endangered species — gnatcatcher petition rejected
  • Tort reform and warning overreach

School choice in Montana

We filed our opening brief in Armstrong v Kadas in the Ninth Circuit Court of Appeals In this case we are challenging the decision by the Montana Department of Revenue not to certify any schools with a religious affiliation for that state’s school choice voucher system The District Court thought that because there was an unrelated suit pending in state court, it could not hear our case But, as our brief points out, when religious discrimination is alleged to violate the First Amendment, federal

Read more

By Ethan W. Blevins

Federal courts and the duty to decide

supremecourtimageSometimes federal courts will dodge the Constitution rather than defend it That happened with our constitutional challenge to Montana’s discriminatory school regulations Yesterday, in Armstrong v Kadas, we filed a brief asking the Ninth Circuit to remind the district court of its duty to exercise its jurisdiction–especially over constitutional cases (more…)

Read more