Can a state legally discriminate against Christian students at faith-based schools by excluding them from private scholarship opportunities?
That’s the question at the center of a case headed to federal court in Montana. Lawyers with the Pacific Legal Foundation who were unsuccessful in convincing Montana bureaucrats to voluntarily drop the discriminatory regulation now have gone to federal court seeking an order that the rule be canceled.
On Tuesday, PLF announced it has filed a lawsuit against the Montana Department of Revenue for its rule that a newly created Scholarship Tax Credit program excludes Christian and other faith-based schools.
WND reported nearly two months ago that the organization was planning to argue to state officials that the rule by the state agency would exclude some schools specifically because of their religious affiliation, which is unconstitutional.
The legislative goal of the program was to expand educational choices and opportunities for Montana families and school-age children, but PLF noted some schools would be left out under rules imposed by the state agency.
The lawsuit is on behalf of a family as well as the Association of Christian Schools International, an organization that also acts as an accrediting and licensing body. There are 3,000 schools across the United States in the association, including 11 in Montana, that would not benefit from the program.
The program, to be launched at the beginning of 2016, allows individuals and businesses to donate to non-government, nonprofit scholarship groups in return for a tax credit.
The organizations then give tuition scholarships to help students. The money is given directly to the schools selected by students or their parents.
But the restriction on religious institutions is “flat-out unconstitutional,” said a PLF spokesman.
“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,” attorney Wen Fa said.
The law actually says any “qualified education provider,” which is defined as an accredited private school, can participate.
But PLF said the problem comes with the regulations that have been proposed, which would exclude schools “owned or controlled in whole or in part by any church, religious sect or denomination,” or 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.”
PFL’s lawsuit is on behalf of Kathy and Jerry Armstrong of Missoula, whose son is in Missoula’s Valley Christian School.
The suit “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,” the legal team explained.
“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.”
The legal team said it was the state revenue agency that decided to discriminate against any school “owned or controlled in whole or in part by any church, religious sect, or denomination” or any “faith-based organization.”
Explained 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.”
Fa continued: “Not only is the department thumbing its nose at fundamental constitutional values, it is also usurping the authority of the Montana Legislature. 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.”
Kathy Armstrong, in a statement from PLF, said, “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.”
Defendants argue that the Montana Constitution prevents state support for Christian schools, but the scholarship money is not from the state, the plaintiffs explain.
See the PLF video describing the case: