When a case from Montana makes it to the United States Supreme Court, it deserves recognition. Montana cases make rare appearances in the Supreme Court, but when they do, the case usually is quite controversial in nature. Recall the enactment of the Brady Bill, where Congress mandated sheriffs to ascertain whether a proposed firearms buyer could lawfully possess a firearm. This was an unfunded and cumbersome mandate for which local sheriffs were wholly unprepared and unwilling to comply. A Montana sheriff objected to the use of congressional action to compel state officers to execute federal law and won.
Montana is back in the spotlight with an issue that has been hotly debated for years. The Montana Legislature passed a law that provides a tax credit of up to $150 for folks who donate to private scholarship organizations. The organizations then use the donated money to provide scholarships for students who want to attend private schools. The Montana Department of Revenue declined to implement the law, explaining its view that using scholarships at religious schools violates the state constitution’s ban on public aid for religious schools. A Kalispell parent of a private school student objected, arguing that excluding religious schools from the scholarship program constitutes unfair discrimination.
To the extent there is a fear that by providing a tax credit to parents paying private school tuition the state is using public funds to support religious enterprises, this fear ignores some key facts. First, the parents paying private school tuition also pay the costs for public school kids to attend public school via their property tax bills. In a sense, they are paying tuition twice. Granted, the choice to utilize private school is solely their own, but not all kids thrive in the public school system and benefit from an alternative educational environment. Secondly, and most importantly, public funds have been subsidizing private education since 1965 by way of Pell grants. Pell grants don’t discriminate on the basis of private versus public education, but Pell grants do require the college to meet accreditation standards. The scholarship program enacted by the Montana Legislature appears to do the same for K-12 education as Pell grants do for college education. Adding a requirement that basic educational standards are met by the recipient schools (similar to Pell grant eligibility) could help alleviate the concerns of those opposing the program.
It was not apparent at the end of the hearing last week how the Supreme Court would rule in the scholarship case. Regardless, Montanans willing to fight the long, hard battle to get to the Supreme Court deserve recognition. I applaud the Espinozas and the other parents who modeled for their children the courage of their convictions.
Tammi Fisher is an attorney and former mayor of Kalispell.
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