A legal challenge that began in Northwest Montana was resolved in the country’s highest court on Tuesday, June 30, when a 5-4 decision restored a state law that allows donors to a private school scholarship fund to receive a tax credit even if those scholarships are awarded to students at religious schools.
The ruling in Espinoza vs. Montana Department of Revenue had been highly anticipated by proponents of religious education and the decision, with the U.S. Supreme Court’s five conservative justices comprising the majority, has been cheered by those who believe the ruling could pave the way to more permissive state laws allowing greater school choice, potentially expanding private education.
Public education officials, meanwhile, slammed the court’s ruling. They claim that the tax credit redirects funding that would have gone to public schools, and that allowing the credit to be taken in connection with a religious school directly violates provisions in Montana’s Constitution separating church and state, with the head of the state’s largest teacher’s saying the ruling was the “beginning of the dismantling of the free education system” in Montana.
The law in question was passed by the state Legislature in 2015 and allowed anyone donating to an approved scholarship fund for private school students to take a $150 tax credit. Most private school students in Montana attend religious-based schools, and before the law could take effect the Department of Revenue added a provision that prevented donors from receiving the credit if their contribution helped fund a scholarship at a religious school.
It was then that three mothers of students at Kalispell’s Stillwater Christian School — Kendra Espinoza, Jeri Anderson and Jaime Schaefer — sued the Department of Revenue. After years of legal wrangling, including a 2018 ruling by the Montana Supreme Court that invalidated the entire 2015 law, the U.S. Supreme Court agreed to take up the case.
Espinoza was making oatmeal and nervously refreshing the Supreme Court’s website when the decision was released on June 30.
“Initially, right when we had the arguments (in January), I felt very, very confident,” Espinoza, who attended the arguments in Washington D.C., said. “We knew we had at least four justices on our side based on that day itself and I felt like we had a lot of validity to our arguments.
“But watching the Supreme Court cases coming out over the last few weeks, I was starting to get a little hesitant just because they had sided more on the liberal side on these big, landmark cases.”
Cases decided by the Supreme Court in recent weeks include decisions affirming the Deferred Action for Childhood Arrivals (DACA) program, asserting employment discrimination protections for LGBTQ workers, and upholding abortion rights.
The decision in Espinoza was celebrated by conservative politicians, including U.S. Sen. Steve Daines. In a statement, Daines called the decision “a major victory across Montana and the country for religious liberty.” Fellow Republican U.S. Rep. Greg Gianforte, in his own statement, called the ruling “a step in the right direction to ensure kids have access to the best possible education that meets their unique, individual needs.”
Closer to home, Stillwater Christian School Head of School Jeremy Marsh was likewise encouraged by the news.
“We’ve stood by these three courageous moms from the outset and the initiative they took to file this case,” he said. “Seeing this go all the way up to the Supreme Court and be decided favorably toward our Stillwater moms was certainly something we are excited about.”
The Montana tax credit program has been in effect throughout during the litigation and currently runs through just one clearinghouse, Big Sky Scholarships. Those who donate to Big Sky Scholarships are eligible for a dollar-for-dollar tax credit, up to $150 per person, and those donations are then awarded to applicants from any private school in Montana. At the height of the program, Marsh said, 18 Stillwater Christian students from around a dozen different families were receiving about $500 per student in scholarships.
Those modest numbers, and the modest amount of the tax credit, have both sides of the Espinoza case looking to the future. To proponents, the ruling opens the door for Montana to authorize an even larger tax credit and encourage significantly larger donations to scholarship funds. To opponents, that same future looks like tax dollars that would have otherwise gone to public education being reallocated as tax credits and, indirectly, scholarship dollars to attend private schools.
“When you start siphoning money out of the public education system for profit, where does that leave us?” Amanda Curtis, the president of the Montana Federation of Public Employees, said. “When you’re giving a family a tax credit, then that affects the amount of revenue that the state takes in to pay for public education. Every time the state loses money to pay for public education that gets shifted down to local (taxpayers).”
Curtis also expressed concern over the Supreme Court’s decision seemingly superseding the Montana Constitution, which includes a no-aid provision prohibiting public funding for religious schools. Similar provisions exist in more than 30 state constitutions and are commonly known as Blaine Amendments, although Montana’s current constitution was ratified long after Blaine Amendments were en vogue in the 19th century. Opponents of Blaine Amendments contend they are rooted in anti-Catholic bias and in Justice Samuel Alito’s separate opinion in Espinoza, he specifically made note of that bias.
“It’s also just so sad when you have a respect for Montana’s constitution and (the people) that came together to write it,” Curtis said, adding that those who ratified the constitution included clergy members. “To accuse them of being bigoted it’s just so hurtful, that Montana was somehow founded by bigots.”
While significant, the Espinoza decision is not expected to be the end of the legal wrangling over the issues of religious freedom and educational choice, and many eyes in Montana have turned to the upcoming election, particularly the races for governor, attorney general and superintendent of public education.
Gianforte is the Republican nominee for Montana governor and his Democratic opponent, current Lt. Gov. Mike Cooney, released his own statement warning that his opponent represented a threat to public education.
“While Gianforte cheers this ruling, we’re going to double down on our commitment to protecting Montana’s public schools, students and teachers from these attacks,” Cooney wrote.
The case’s chief plaintiff, meanwhile, sees hope for a brighter future for private schools like the one her two daughters attend, where she says a “values-based perspective or a religious perspective” is appealing to parents like her.
“I think it’s going to expand our scholarship program and allow more opportunities for other kids,” Espinoza said. “I see this as (an opportunity for) scholarship programs to improve, and with so many people leaning toward private schools I think we could see even more private schools in Montana.”
Stay Connected with the Daily Roundup.
Sign up for our newsletter and get the best of the Beacon delivered every day to your inbox.