Flathead Judge Rules Against State Over School Choice Program

District Judge David Ortley said Thursday that the state Department of Revenue may have overstepped its authority

By BOBBY CAINA CALVAN, Associated Press

HELENA — A Montana judge ruled that the state cannot exclude children attending religious schools from being awarded scholarships under Montana’s School Choice program.

In his ruling released late Thursday, District Judge David Ortley said the state Department of Revenue likely overstepped its authority in excluding religious schools as a “qualified education provider.”

Ortley said the state Legislature did not explicitly bar such schools from the program when it passed Senate Bill 410 last year. The law, which went into effect in January, established tax credits of up to $150 for donations to private scholarship funds.

At issue is whether a rule established by the Revenue Department prohibiting the use of those scholarships at faith-based schools is constitutional.

The Institute for Justice, a Virginia-based law firm advocating for school-choice programs, sued the agency in December on behalf of three Montana mothers with children enrolled at Stillwater Christian School in Kalispell.

Mary Ann Dunwell, a spokeswoman for the Revenue Department, said the agency is reviewing the decision and considering its options. However, the agency stood by its interpretation of the state Constitution, which it said prohibits “direct and indirect payments or appropriations to religious or sectarian schools.”

“The premise of the department’s rules for administering the new law remains the same,” the department said in a statement.

The measure became law without Gov. Steve Bullock’s signature. At the time, the governor expressed concern “about using public resources for private education” but was “supportive of the provisions of the bill that allow taxpayers to direct money to build upon innovative programming in local public schools.”

Ortley wrote that the law was intended “to provide parental and student choice in education” and that the Department of Revenue “interjects qualifiers” into what the legislature deemed as a “qualified education provider.”

He said the agency’s prohibition against faith-based schools in the scholarship program is a “complete barrier” for the plaintiff’s children in competing for scholarships.

The Montana Family Foundation praised the decision.

“Thursday’s ruling was a resounding victory for parents and kids,” said Jeff Laszloffy, the foundation’s president. “It’s a pathway for students to succeed, whether they need public school or a private school to do it.”

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