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Bowers, Fann wade into legal fight over Montana school choice program

By: - September 24, 2019 3:58 pm

Arizona House Speaker Rusty Bowers and Senate President Karen Fann are asking the U.S. Supreme Court to overturn a Montana ruling that struck down that state’s tax credits for people who contribute money to private school scholarships.

Bowers and Fann, along with legislative leaders from Montana and Nebraska, filed an amicus brief asking the high court to reverse a state supreme court’s ruling. Numerous other school choice advocates from across the country have filed similar briefs.

The Montana Supreme Court last year struck down a state program that provided up to $150 in tax credits for donations to organizations that provide scholarships for students to attend private schools. The court ruled that the program violated a provision in the Montana Constitution barring state aid to religious organizations.

A group of Montana parents are now appealing to the U.S. Supreme Court, arguing that excluding religious schools from an otherwise neutral school choice program violates their religious freedom rights under the First Amendment and their equal protection rights under the Fourteenth Amendment.

Those parents are also questioning the constitutionality of Montana’s constitutional bar on state aid to religious organizations. Such provisions are often known as Blaine amendments, so named for James G. Blaine, a late 19th-century Republican senator and secretary of state who unsuccessfully pushed for a federal constitutional amendment barring government assistance to religious schools, especially those run by the Catholic Church.

Attorney Tim Keller of the conservative legal organization Institute for Justice, who is representing the parents, said the primary argument against the Montana court’s ruling is that the state’s Blaine amendment shouldn’t be applied to the tax credit program. But he said they’ve emphasized to the high court that it has the option of simply striking down Blaine amendments as unconstitutional because they were largely motivated by anti-Catholic bias.

Bowers and Fann pointed out the amendment’s discriminatory origins, as well.

“For too long, school choice opponents have used religious discrimination codified into law by the Blaine Amendments to deprive students of a chance at a better education. I hope the Supreme Court finally rights this wrong,” Bowers said in a press statement on Tuesday.

If the Supreme Court reverses the Montana ruling, it’s unlikely to have any effect in Arizona, Keller said. 

Arizona already has a program providing tax credits to people who donate to school tuition organizations, which the Arizona Supreme Court upheld in 1999. 

Arizona’s own prohibition on state aid to religious schools led the state supreme court in 2009 to strike down a voucher-style program that allowed students to use taxpayer dollars to attend private schools. A subsequent program got around that ruling by allowing students to use the money for things like tutoring and educational materials, in addition to private school tuition.

If the U.S. Supreme Court reverses the Montana decision, the only way it would affect Arizona is if it ruled that Blaine amendments in general are unconstitutional, Keller said. Even then, that would only come into play if the legislature creates a new program or expands an existing one in a way that could run afoul of the Arizona Constitution’s prohibition on state aid to religious organizations.

Matt Specht, a spokesman for Bowers, said the case is unlikely to have an impact in Arizona, “but, depending on the ruling, it may create opportunities for Arizona legislators to improve our laws.”

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Jeremy Duda
Jeremy Duda

Jeremy Duda is a Phoenix native and began his career in journalism in 2003 after graduating from the University of Arizona. Jeremy Duda previously served as the Mirror's associate Editor. Prior to joining the Arizona Mirror, he worked at the Arizona Capitol Times, where he spent eight years covering the Governor's Office and two years as editor of the Yellow Sheet Report. Before that, he wrote for the Hobbs News-Sun of Hobbs, NM, and the Daily Herald of Provo, Utah. Jeremy is also the author of the history book “If This Be Treason: the American Rogues and Rebels Who Walked the Line Between Dissent and Betrayal.”