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On The Front Lines

Rutherford Institute Challenges Discriminatory Law Preventing Students From Using Scholarships to Attend Private Schools With Religious Ties

WASHINGTON, DC — Denouncing state laws that claim to advocate for school choice while discriminating against individuals who favor private schools with religious ties, The Rutherford Institute has asked the U.S. Supreme Court to reject a provision of Montana’s constitution that prohibits students from using scholarship funds to attend religiously-affiliated private schools.

In filing an amicus brief in Espinoza v. Mont. Dept. of Revenue, Rutherford Institute attorneys argue that Montana’s discriminatory law violates the First and Fourteenth Amendments to the U.S. Constitution. Moreover, Institute attorneys point out that the school choice restrictions are the end result of a 150-year-old provision of the state’s constitution known as a “Blaine Amendment,” which was enacted in an era when anti-Catholic prejudice and nativist opposition to immigration from Ireland and Germany were rampant. Thirty-seven states still have versions of the Blaine Amendments in their constitutions.

Attorneys Jason P. Gosselin, John M. Bloor and Joseph P. Connor of Drinker Biddle & Reath, LLP, in Philadelphia, Pa., assisted The Rutherford Institute advancing the arguments in Espinoza.   

“The First Amendment’s Establishment Clause requires neutrality when it comes to religion,” said constitutional attorney John W. Whitehead, president of The Rutherford Institute and author of Battlefield America: The War on the American People. “In other words, the government may not favor or disfavor one religion over another, nor may it favor or disfavor religion over non-religion, with the reverse holding true, as well. The Constitution establishes a neutral playing field for all viewpoints and requires the government to remain equally impartial. That is the beauty of the Establishment Clause.”

In 2015, the Montana Legislature created a scholarship program for students (kindergarten through twelfth grade) that was intended to provide parents with more choices on where their children would attend school. The program fostered this choice by providing individuals and businesses with a tax credit of up to $150 annually for donations made to private organizations that provide scholarships to students who wish to attend private schools. Under the terms of the law, scholarships could be awarded for attendance at virtually any private school within Montana. Soon after the scholarship program was established, however, the state’s taxing agency issued an administrative rule that restricted students from using scholarships at any school “owned or controlled in whole or in part by any church, religious sect, or denomination.” The agency cited the Blaine Amendment as justification for the exclusion.

Kendra Espinoza, a single mother depending on the scholarship funds to offset private school tuition costs, challenged the state’s discriminatory prohibition on the use of scholarship funds for religious private schools. In exercising her right to choose the school best suited to her family’s needs, Espinoza opted for a Christian school whose values she preferred as opposed to keeping her daughters in public school, where they had been bullied. When the state agency cut off her ability to use scholarship funds for the Christian school, Espinoza brought a lawsuit asserting that the exclusion of religious school from the scholarship program discriminated against religion in violation of the First and Fourteenth Amendments to the U.S. Constitution. After the state courts upheld the exclusion because of the terms of the Montana Constitution, the U.S. Supreme Court agreed to determine whether the discrimination violates the federal Constitution. In its amicus brief supporting Espinoza, The Rutherford Institute asked the Court to rule that Montana’s application of the Blaine Amendment to discriminate against schools with religious affiliations violates the First Amendment’s mandate that the government be neutral in matters of religion.


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