Suit challenges religious schools' program exclusion

HELENA, Mont. (AP) — An association of Christian schools and a Missoula family are challenging a Montana rule that excludes religious schools from a new tax-credit program created to provide scholarships for students at private schools.

The Pacific Legal Foundation said it recently filed a federal lawsuit challenging a Revenue Department rule for implementing a tax credit of up to $150 for donations made to private school scholarships or to innovative public school programs.

The rule, adopted on Dec. 15, bars religious schools from benefiting, citing the Montana Constitution’s prohibition on appropriations to religious institutions. The federal lawsuit filed Monday on behalf of the Association of Christian Schools International, along with Kathy and Jerry Armstrong of Missoula, argues the rule violates the U.S. Constitution’s guarantees of religious freedom and equal protection.

They argue it also violates the intent of the law, which was to expand educational options for all families with school-aged children.

“By singling out faith-based schools, and their students for exclusion, the Department of Revenue is brazenly violating the Constitution,” Pacific Legal Foundation attorney Ethan Blevins said in a statement.

Montana Solicitor General Dale Schowengerdt submitted comments while the agency was drafting the rule that said a judge would likely decide it is unconstitutional to categorically exclude religious entities from a neutral benefits program without reason. “The Attorney General believes that it would not be defensible,” Schowengerdt wrote of Montana Attorney General Tim Fox.

Fox’s office would be called upon to defend the state against the federal lawsuit and another one filed in state court on Dec. 16 that argued tax credits are not state appropriations.

A majority of Montana lawmakers polled about the rules said they do not follow the legislature’s intent in passing the Scholarship Tax Credit program. That poll can be used as evidence in the two cases.

There are more than 145,000 students in public schools and an estimated 7,200 in private schools in Montana. Most private schools in the state have religious affiliations, education officials have said.

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