Amicus Curiae Brief — Kendra Espinoza, et al., Petitioners v. Montana Department of Revenue, et al.

No. 18-1195

IN THE

Supreme Court of the United States

_________

KENDRA ESPINOZA, ET AL.,

Petitioners,

v.

MONTANA DEPARTMENT OF REVENUE, ET AL.,

Respondents.

_________

On Writ of Certiorari

To the Supreme Court of Montana

_________

BRIEF OF NATIONAL SCHOOL BOARDS

ASSOCIATION ET AL. AS AMICI CURIAE

IN SUPPORT OF RESPONDENTS

_________

FRANCISCO M. NEGRÓN, JR.

Counsel of Record*

Chief Legal Officer

SONJA H. TRAINOR

NATIONAL SCHOOL BOARDS

ASSOCIATION

1680 Duke Street, FL 2

Alexandria, VA 22314

(703) 838-6722

fnegron@nsba.org

Counsel for Amici Curiae

TABLE OF CONTENTS

Page

TABLE OF AUTHORITIES .................................. iii

INTERESTS OF AMICI CURIAE ........................... 1

SUMMARY OF ARGUMENT .................................. 4

ARGUMENT .............................................................. 6

I.

STATES’ POLICY DECISIONS NOT TO

FUND RELIGIOUS INSTRUCTION AS

PART

OF

THEIR

HISTORIC

COMMITMENT TO PUBLIC EDUCATION

ARE CONSTITUTIONAL ................................ 6

A. Even if Montana’s decision not to fund

religious uses of public funds is subject to

strict scrutiny, it has numerous compelling

interests for doing so ...................................... 14

B. Montana’s decision not to allow public

funds to flow indirectly to religious schools is

consistent with this Court’s holdings that

states need not fund religious education ....... 22

II.

PROGRAMS

LIKE

MONTANA’S

INVALIDATED TAX CREDIT SCHEME

HARM PUBLIC EDUCATION ...................... 26

A. Tax credit scholarship programs like

Montana’s divert money otherwise headed for

state coffers to private schools ....................... 27

i

B. Tax credit scholarship programs support

private schools that are not accountable to

state taxpayers as public schools are ............ 31

CONCLUSION ........................................................ 36

ii

TABLE OF AUTHORITIES

Page

Cases

Agostini v. Felton,

521 U.S. 203 (1997) ............................................... 5, 24

Arizona Christian School Tuition

Organization v. Winn,

563 U.S. 125 (2011) ....................................... 28, 30, 35

Attorney General v. Sch. Committee of

Essex, 439 N.E.2d 770 (Mass. 1982) ......................... 25

Bd. of Cnty. Commissioners v. Idaho

Health Facilities Authority,

531 P.2d 588 (Idaho 1974) ........................................ 25

Bowen v. Kendrick,

487 U.S. 589 (1988) ................................................... 24

Brown, et al. v. Board of Education of

Topeka, Shawnee County, Kan. et al.,

347 U.S. 483 (1954) ............................................... 6, 26

Chittenden Town Sch. Dist. v. Dep’t of

Educ., 738 A.2d 539 (Vt. 1999) ................................. 25

Committee for Pub. Educ. and Religious

Liberty v. Nyquist, 413 U.S. 756 (1973).............. 20, 23

Edwards v. Aguillard,

482 U.S. 578 (1987) ................................................... 18

iii

Epperson v. Arkansas,

393 U.S. 97 (1968) ............................................ 7, 18-19

Espinoza v. Montana Dept. of Revenue,

435 P.3d 603 (Mont. 2018) .................................. 14, 28

Eulitt ex rel. Eulitt v. Maine, Dep’t of

Educ, 386 F.3d 344 (1st Cir. 2004) ........................... 24

Griffin v. County Sch. Bd. of Prince

Edward Cnty, 377 U.S. 218 (1964) ........................... 27

Hernandez v. Commissioner,

490 U.S. 680 (1989) ................................................... 24

Hosanna-Tabor Evangelical Lutheran

Church and School v. E.E.O.C.,

565 U.S. 171 (2012) ................................................... 15

Knowlton v. Baumhover,

166 N.W. 202 (Iowa 1918) ......................................... 25

Lemon v. Kurtzman,

403 U.S. 602 (1971) ............................................. 16, 19

Locke v. Davey,

540 U.S. 712 (2004) .................. 5, 12, 13, 20, 22-23, 24

Masterpiece Cakeshop, Ltd. v. Colorado

Civ. Rights Commn.

138 S. Ct. 1719 (2018) ............................................... 21

Matthews v. Quintin,

362 P.2d 932 (Alaska 1961) ...................................... 25

iv

McCreary Cnty. v. Am. Civil Liberties

Union of Kentucky, 545 U.S. 844 (2005)................... 23

Milliken v. Bradley,

418 U.S. 717 (1974) ..................................................... 7

Mitchell v. Helms.,

530 U.S. 793 (2000) ..................................................... 5

Mueller v. Allen,

463 U.S. 388 (1983) ............................................. 19, 22

Plyler v. Doe,

457 U.S. 202 (1982) ..................................................... 7

School Dist. of Abington Township v.

Schempp, 374 U.S. 203 (1963) .................................. 18

Spears v. Honda,

449 P.2d 130 (Haw. 1968) ......................................... 25

Trinity Lutheran Church of Columbia,

Inc. v. Comer,

137 S.Ct. 2012 (2017) ................................ 5, 12, 13, 23

University of the Cumberlands v.

Pennypacker, et al.,

308 S.W. 668 (Ky. 2010) ............................................ 25

U.S. v. Lopez,

514 U.S. 549 (1995) ..................................................... 7

Wisconsin v. Yoder,

406 U.S. 205 (1972) ..................................................... 7

v

Zelman v. Simmons-Harris,

536 U.S. 1639 (2002) ................................................... 5

Zobrest v. Catalina Foothills Sch. Dist.,

509 U.S. 1 (1993) ....................................................... 23

Statutes and Regulations

20 U.S.C. § 1400 et seq .............................................. 33

20 U.S.C. § 1412 (a)(10)(a) ........................................ 33

20 U.S.C. § 6301 et seq ................................................ 9

29 U.S.C. § 794 .......................................................... 33

A.R.S. §§ 20-224.06 ................................................... 29

A.R.S. §§ 20-244.07 ................................................... 29

A.R.S. §§ 43-1089 and 43-1089.03 ............................ 29

A.R.S. §§ 43-1089.04 ................................................. 29

A.R.S. §§ 43-1183 and 43-1184 ................................. 29

Cal. Educ. Code § 52050.5 .......................................... 9

Del. Code Ann. Tit. 14 § 103 ....................................... 9

FL ST § 1010.215 (5)(a)............................................. 10

5 Me. Rev. Code § 4553(10)(G).................................. 17

Mont. Code Ann. § 15-30-3102(7) ............................. 34

Mont. Code Ann. § 20-7-102 ..................................... 34

State Constitutions

Ala. Const. art. XIV, § 256 .......................................... 8

Ala. Const. art. XIV, § 263 ........................................ 11

Alaska Const. art. VII, § 1 .......................................... 8

Ariz. Const. art. XI, § 1 ............................................... 8

Ark. Const. art. XIV, § 1 ............................................. 8

Ark. Const. art. 14, § 2 .............................................. 11

vi

Cal. Const. art. IX, §§ 1, 5 ........................................... 8

Cal. Const. art. 9 § 8 ................................................. 11

Colo. Const. art. IX, § 2 ............................................... 8

Colo. Const. art. IX, § 7 ............................................. 11

Conn. Const. art. VIII, § 1 .......................................... 8

Del. Const. art. X, § 1 .................................................. 8

Del. Const. art. X, § 3 ................................................ 11

Fla. Const. art. IX, § 1 ................................................. 8

Ga. Const. art. VIII, § 1 .............................................. 8

Ga. Const. art. 8, § 5, Par. VII .................................. 11

Haw. Const. art. X, § 1 ................................................ 8

Idaho Const. art. IX, § 1 .............................................. 8

Ill. Const. art. X, § 1 .................................................... 8

Ind, Const. art. VIII, § 1.............................................. 8

Iowa Const. art. IX, 2nd, §§ 1, 3 ................................. 8

Kan. Const. art. VI, §§ 1, 6 ......................................... 9

Ky. Const. § 183 .......................................................... 9

Ky. Const. § 189 ........................................................ 11

La. Const. art. VIII, §§ 1, 11 & 13 .............................. 9

Maine Const. art. VIII, Pt. 1 § 1 ................................. 9

Md. Const. art. VIII, §§ 1, 3 ........................................ 9

Mass. Const. Pt. 2, Ch. 5, § 2 ...................................... 9

Mass. Const. art. XVIII ............................................. 11

Mich. Const. art. 8, §§ 1 .............................................. 9

Mich. Const. art. 8, § 2 .................................... 9, 11, 21

Minn. Const. art. XIII, § 1 .......................................... 9

Minn. Const. art. XIII, § 2 ........................................ 11

Miss. Const. art. 8 §§ 201, 206 & 206A ...................... 9

Miss. Const. art. 8 § 208 ........................................... 11

Mo. Const. art. IX, §§ 1(a), 3(a) & 3(b) ....................... 9

Mo. Const. art. IX, § 8 ............................................... 11

Mont. Const. art. X § 1 ................................................ 9

Mont. Const. art. X, § 6 ............................................. 14

Mont. Const. art. V, § 11(5) ..................................... 11

vii

Neb. Const. art. VII, § 1 .............................................. 9

Neb. Const. art. VII, § 11 .................................... 11, 21

Nev. Const. art. XI, §§ 1, 2, & 6 .................................. 9

N.C. Const. art. IX, §§ 1, 2 .......................................... 9

N.C. Const. art. II, §§ 6, 7 ......................................... 11

N.D. Const. art. VIII, §§ 1– 4 ...................................... 9

N.H. Const. Pt 2, art. LXXXIII ................................... 9

N.J. Const. art. VIII. § 4 ............................................. 9

N.M. Const. art. XII, §§ 1, 4 ........................................ 9

N.M. Const. art. XII, § 3 ........................................... 11

N.Y. Const. art. XI, § 1 ................................................ 9

Ohio Const. art. XI, § 2 ............................................... 9

Okla. Const. art. XIII, §§ 1, 1a ................................... 9

Or. Const. art. VIII, § 3, 4, & 8 ................................... 9

Pa. Const. art. III, § 14 ............................................... 9

R.I. Const. art. XII, §§ 1, 2 .......................................... 9

S.C. Const. art. XI, § 3 ................................................ 9

S.C. Const. art. XI, § 4 .............................................. 11

S.D. Const. art. VIII, §§ 1, 15 ..................................... 9

Tenn. Const. art. XI, § 12............................................ 9

Tex. Const. art. XII, §§ 1, 3, & 5 ................................. 9

Tex. Const. art. VII, § 5............................................. 11

Utah Const. art. 10, §§ 1, 2, & 5 ................................. 9

Vt. Ch. II § 68 .............................................................. 9

Va. Const. art. VIII, § 1, 2........................................... 9

Va. Const. art. VIII, § 10........................................... 11

Wash. Const. art. IX § 1, 2 .......................................... 9

W. Va. Const. art. 12, §§ 1, 5, 12 ................................ 9

Wis. Const. art. X, 3 .................................................... 9

Wyo. Const. art. 7, §§ 1, 8, & 9 ................................... 9

Wyo. Const. art. 7, § 8 ............................................... 11

viii

Other Authorities

Advisory Commission on Intergovernmental

Relations, State Constitutions in the Federal System:

Selected Issues and Opportunities for State

Initiatives, (Jul. 1989)

https://library.unt.edu/gpo/acir/Reports/policy/a113.pdf ...................................................................... 17

Arizona Dep’t of Revenue, Office of Economic

Research & Analysis, School Tuition Organizations

Income Tax Credits in Arizona: Summary of Activity:

FY: 2016/2017 (Apr. 2019),

https://azdor.gov/sites/default/files/REPORTS_CRED

ITS_2018_fy2017-private-school-tuition-org-creditreport.pdf ............................................................30, 31

Arizona School Boards Association, Arizona’s

Unrestored Budget Cuts Part 1 (2017),

https://azsba.org/wp-content/uploads/2017/04/

Unrestored-Budget-Cuts-Pt.1.jpg............................. 30

Carl Davis, State Tax Subsidies for Private K-12

Education, Rep. Institution for Taxation and

Economic Policy (Oct. 12, 2016) (updated May 2017),

http://itep.org/itep_reports/2016/10/state-taxsubsidies-for-private-k12-education.php#. WO0L

x4grJEY ..................................................................... 31

Carl Davis and Sasha Pudelski, Public Loss Private

Gain: How School Voucher Tax Shelters Undermine

Public Education, School Superintendents

Association & Institute of Taxation and Economic

Policy (May 2017),

ix

https://itep.org/public-loss-private-gain-how-schoolvoucher-tax-shelters-undermine-public-education/ . 31

Carl H. Esbeck, When Accommodations for Religion

Violate The Establishment Clause: Regularizing The

Supreme Court’s Analysis, 110 W. Va. L. Rev. 359

(2007) ......................................................................... 16

Center for the Study of Federalism (updated Jun. 3,

2019)

http://encyclopedia.federalism.org/index.php/U.S._Ad

visory_Commission_on_Intergovernmental_Relation

s .................................................................................. 18

Chicago Public Schools, CPS Stats and Facts,

https://cps.edu/About_CPS/At-a-glance/Pages

/Stats_and_facts.aspx ................................................. 8

EdChoice, Fast Facts on School Choice (last modified

May 28, 2019)

http://www.edchoice.org/our-resources/fast-facts ...... 8

Florida Department of Education,

http://www.fldoe/org/core/fileparse.php/7507/urlt/171

8Profiles.pdf ................................................................ 8

Illinois State Board of Education,

https://www.isbe.net/Documents/reorg_history.pdf ... 8

Institute on Taxation and Education Policy, How

School Voucher Tax Shelters Undermine Education

(2017),

https://itep.org/wp-content/uploads/AASA_Public_

Loss_Private_Gain_F2.pdf ....................................... 29

x

James Madison, Memorial and Remonstrance

Against Religious Assessments, 1785, The Founders’

Constitution, Vol. 5, Amend, I (Religion), Doc. 43,

University of Chicago Press,

http://press-pubs.uchicago.edu/founders/

documents/amendI_religions43.html ..................5, 15

Jonathan N. Mills & Patrick J. Wolf, The Effects of

the Louisiana Scholarship Program on Student

Achievement After Four Years, Louisiana

Scholarship Program Evaluation Report #10 (Apr.

23, 2019),

http://www.uaedreform.org/wpcontent/uploads/Mills-Wolf-LSP-Achievement-After4-Years-final.pdf........................................................ 32

Kevin Carey, DeVos and Tax Credit Vouchers:

Arizona Shows What Can Go Wrong, New York

Times (Mar. 2, 2017),

https://www.nytimes.com/2107/03/02/upshot/arizonashows-what-can-go-wrong-with-tax-creditvouchers.html ............................................................ 27

Kern Alexander & M. David Alexander, American

Public School Law (Wadsworth Cengage Learning,

8th ed. 2012) .............................................. 7, 25, 26-27

Kimberly Quick, Second Class Students: When

Vouchers Exclude, The Century Foundation, (Jan.

11, 2017),

https://tcf.org/content/commentary/second-classstudents-vouchers-exclude/?session=1&agreed=1 ... 35

xi

Laura S. Underkuffler, The Separation of the

Religious and the Secular: A Foundational Challenge

to First Amendment Theory, 2 First Amend. L. Rev.

179 (2004) .................................................................. 21

Maryland Department of Education,

http://www.marylandpublicschools.org/about/Pages/d

irectory.aspx ............................................................... 8

Megan Austin, R. Joseph Waddington, & Mark

Berends, Voucher Pathways and Student

Achievement in Indiana’s Choice Scholarship

Program, RSF: The Russell Sage Foundation

Journal of the Social Services (2019),

https://www.rsfjournal.org/content/rsfjss/5/3/20.full.

pdf .............................................................................. 32

Montana Constitutional Convention 1971-1972

transcript Vol. VI, p. 2008-2009 (Mont. Legis. &

Legis. Council 1981),

https://courts.mt.gov/portals/189/library/mt_cons_con

vention/vol6.pdf ......................................................... 12

National Center for Education Statistics, Public

School Revenue Sources,

https://nces.ed.gov/programs/coe/indicator_cma.asp

................................................................................... 28

National Conference of State Legislatures, Fiscal

Impact of Vouchers and Scholarship Tax Credits

(2013),

http://www.ncsl.org/research/education/fiscal-impactof-school-vouchers-and-scholarship-tax-credits-aspx

................................................................................... 26

xii

National Council on Disability, School Choice Series:

Choice & Vouchers – Implications for Students with

Disabilities, (Nov. 15, 2018),

https://ncd.gov/sites/default/files/NCD_ChoiceVouchers_508_0.pdf .................................................. 33

Neil Campbell and Catherine Brown, Vouchers Are

Not a Viable Solution for Vast Swaths of America,

Center for American Progress (March 3, 2017),

https://www.americanprogress.org/issues/educationk-12/news/2017/03/03/414853/vouchers-are-not-aviable-solutions-for-vast-swaths-of-america/ ........... 35

Network for Public Education, Grading the States

(June 2018),

https://networkforpubliceducation.org/grading-thestates/......................................................................... 10

Office of Public Instruction, Facts About Montana

Education 2019,

https://opi.mt.gov/Portals/182/Page%20Files/Superin

tendent’s%2-Folder/FactsAbout MontanaEducation.

pdf?ver=20-19-04-02-121817-760 ............................ 10

Rebecca Klein, These Schools Get Millions Of Tax

Dollars To Discriminate Against LGBTQ Students,

HuffPost (Dec. 15, 2017),

https://www.huffpost.com/entry/discrimiation-lgbtprivate-religious-schools_n_5a32a45de4b00dbbcb

5ba0be ........................................................................ 35

Regional Office of Education #28, Ohio Community

Hight School District #505,

http://www.bhsroe.org/public-schools/ohio/505 .......... 8

xiii

Save Our Schools Arizona (2019),

https://sosarizona.org/2019/02/07/5-things-you-needto-know-about-stos/ ................................................... 30

The Center for Public Justice, What Is The Role Of

School Boards? (last accessed Nov. 13, 2019),

https://www.cpjustice.org/public/page/content/cie_faq

_school_boards ............................................................ 8

Thomas Jefferson, Letter to the Danbury Baptists,

(Jan. 1, 1802),

http://www.loc.gov/loc/lcib/9806/danpre.html ......... 16

U.S. Dep’t of Education, The Federal Role in

Education,

https://www2.ed.gov/about/overview/fed/role.html .... 7

U.S. Government Accountability Office, Private

School Choice: Accountability in State Tax Credit

Scholarship Programs, GAO-19-664 (September

2019)

https://www.gao.gov/assets/710/701640.pdf ............. 32

U.S. Government Accountability Office, Private

School Choice: Federal Actions Needed to Ensure

Parents Are Notified About Changes in Rights for

Children with Disabilities, GAO-18-94 (November

2017)

https://www.gao.gov/assets/690/688444.pdf ............. 33

xiv

INTERESTS OF AMICI CURIAE 1

Amici curiae are associations dedicated to

improving and supporting public education in the

United States. Amici also have a longstanding

interest in implementing effective state and local

education policies in accordance with constitutional

requirements, including the First Amendment’s

Establishment and Free Exercise Clauses. Amici are

gravely concerned that an expansion of this Court’s

ruling in Trinity Lutheran would undermine

longstanding state policies, based on decades of

precedent, supporting public education.

The National School Boards Association

(“NSBA”) represents state associations of school

boards across the country, and the board of education

of the U.S. Virgin Islands. NSBA represents over

90,000 of the Nation’s school board members who, in

turn, govern over 13,600 local school districts that

serve approximately 50 million public school students

— 84 percent of the elementary and secondary

students in the nation.

The Montana School Boards Association

(“MTSBA”) is a nonprofit, non-partisan corporation

organized under section 501(c)(3) of Title 26 of the

United States Code. MTSBA represents over 1,400

elected school board members in Montana. MTSBA

member trustees are constitutionally empowered

1 The parties have filed blanket consents to the filing of briefs

amici curiae. No counsel for a party authored this brief in whole

or in part. No such counsel, any party, or any other person or

entity – other than amici curiae, their members, and their

counsel – made a monetary contribution intended to fund the

preparation or submission of this brief.

1

under Article X, Section 8 of the Montana

Constitution with supervision and control of the

public schools of Montana and are sworn to support,

protect and defend the constitution of the United

States, and the constitution of the state of Montana.

The Montana Quality Education Coalition

(“MQEC”) is a statewide advocacy organization

focusing on adherence to Article X of the Montana

constitution as it impacts K-12 public education.

Members include Montana public school districts as

well as statewide entities representing the interests

of school business officials, educators, rural schools,

locally elected trustees, and school administrators.

AASA,

The

School

Superintendents

Association (“AASA”) represents over 13,000 school

system leaders and advocates. For over 150 years,

AASA has advocated for the highest quality public

education for all students, and provided programming

to develop and support school system leaders

nationwide.

The Association of Educational Service

Agencies (“AESA”) is a professional organization

serving regional educational service agencies in 45

states. There are 553 educational service agencies

nationwide.

The Association of Latino Administrators and

Superintendents (“ALAS”) is a professional

organization with the goal of effectively serving the

educational needs of Latinx youth through the

professional development of administrators.

Association of School Business Officials

International (“ASBO”) is a nonprofit organization

that, through its members and affiliates, represents

2

approximately 30,000 school business professionals

worldwide.

The Council of Administrators of Special

Education (“CASE”), a division of the Council for

Exceptional Children, is an international nonprofit

professional organization providing leadership,

advocacy, and professional development to more than

4,500 administrators who work on behalf of students

with disabilities and their families in public and

private school systems and institutions of higher

education.

The Council of the Great City Schools

(“Council”) is a coalition of 76 of the nation’s largest

urban public school systems, and is the only national

organization exclusively representing the needs of

urban public schools.

The National Association of Elementary School

Principals (“NAESP”) is a professional organization

serving elementary and middle school principals and

other education leaders throughout the United

States, Canada, and overseas.

The National Association of Secondary School

Principals (“NASSP”) is the leading organization of

and voice for principals and other school leaders

across the United States.

National PTA is a nationwide network of

nearly 3.5 million families, students, teachers,

administrators, and business and community leaders

devoted to making a difference for the education,

health, safety and well-being of every child and

making every child’s potential a reality.

The National Rural Education Advocacy

Consortium (“NREAC”) currently represents rural

3

public school districts in 17 states. The purpose of

NREAC is to advocate for the highest quality of

education for the children of rural America's public

schools.

The National Rural Education Association

(“NREA”) is the voice of all rural schools and rural

communities across the United States.

Amici believe public schools are the

cornerstone of American democracy and oppose

efforts to divert public funds away from the crucial

mission of public education.

SUMMARY OF ARGUMENT

The state of Montana, in a ruling of its

Supreme Court based on its state constitution, has

invalidated a tax credit scholarship program that

would enable the state to fund private sectarian

institutions indirectly. It has decided to end the

program altogether. Through that ruling, which is

reasonable and constitutional under the principles

espoused by this Court for decades, the state is

choosing to remain neutral with respect to religion on

this issue. There is nothing further to decide, and

Amici urge this Court to end its analysis here. If this

Court decides to address whether the Montana

constitutional provision as applied by its Supreme

Court passes muster under the U.S. Constitution,

Amici urge it not to steer away from its recognition

that states may choose not to fund religious

instruction in favor of supporting their public schools,

and to consider the harm that will result to public

education from any dramatic shift in its existing

precedents.

4

States historically have committed themselves

to public education by restricting the use of public

funds for private and/or religious schools; this Court

never has held that this violates the U.S.

Constitution. Nor has this Court ever ruled that a

state’s decision not to offer any, even indirect, public

subsidy to private – religious or nonreligious – schools

through a tax credit scholarship program violates the

U.S. Constitution.

Although the Court has found certain types of

public support of religious institutions to be

permissible under the Establishment Clause, 2 it has

not held such support to be required under the Free

Exercise Clause. To hold as much now would be to

open the door to redirection of scarce public dollars to

private religious institutions, to invite entanglement

with and regulation of religious instruction, and to

steer the opposite direction from the efforts by states

at our nation’s founding to avoid establishment, as

“[r]eligion then of every man must be left to the

conviction and conscience of every man….” James

Madison, Memorial and Remonstrance Against

Religious Assessments, 1785, The Founders’

Constitution, Vol. 5, Amend. I (Religion), Doc. 43,

University

of

Chicago

Press,

http://presspubs.uchicago.edu/founders/documents/amendI_relig

ions43.html.

Most importantly, to hold as much now would

be to open the door to programs that harm public

education by drawing public funding and support

2 Agostini v. Felton, 521 U.S. 203 (1997); Mitchell v. Helms 530

U.S. 793 (2000); Zelman v. Simmons-Harris, 536 U.S. 639

(2002); Locke v. Davey, 540 U.S. 712 (2004); Trinity Lutheran

Church of Columbia, Inc. v. Comer, 137 S.Ct. 2012 (2017).

5

away from local public schools. This Court should not

disregard its long and sustained recognition of the

crucial role of public education in preparing students

for participation in our democracy, and states’

flexibility to manage that important mission with

their own policy choices. Amici urge the Court not to

create a new era of constitutional interpretation that

upends historic understanding of the ability of states

to support public education.

ARGUMENT

I.

STATES’ POLICY DECISIONS NOT TO

FUND RELIGIOUS INSTRUCTION AS

PART

OF

THEIR

HISTORIC

COMMITMENT

TO

PUBLIC

EDUCATION ARE CONSTITUTIONAL.

This Court has long recognized the crucial

importance of public education in preparing students

for participation as responsible members of society

and its unique role as “the very foundation of good

citizenship.” 3 It has affirmed “the importance of

3 Brown et al. v. Board of Education of Topeka, Shawnee County,

Kan. et al., 347 U.S. 483, 493 (1954)(“Today, education is

perhaps the most important function of state and local

governments. Compulsory school attendance laws and the great

expenditures for education both demonstrate our recognition of

the importance of education to our democratic society. It is

required in the performance of our most basic public

responsibilities, even service in the armed forces. It is the very

foundation of good citizenship. Today it is a principal instrument

in awakening the child to cultural values, in preparing him for

later professional training, and in helping him to adjust

normally to his environment. In these days, it is doubtful that

6

education in maintaining our basic institutions, and

the lasting impact of its deprivation on the life of the

child,” asserted that “education provides the basic

tools by which individuals might lead economically

productive lives to the benefit of us all,” and

recognized education’s “fundamental role in

maintaining the fabric of our society.” Plyler v. Doe,

457 U.S. 202, 221 (1982).

At the same time, it is well-established that

public education is a state and local responsibility.

U.S. v. Lopez, 514 U.S. 549, 580-581 (1995) (Kennedy,

J., concurring) (“... [E]ducation is a traditional

concern

of

the

States.”)(citing Milliken

v.

Bradley, 418 U.S. 717, 741–742 (1974) and Epperson

v. Arkansas, 393 U.S. 97, 104 (1968)); see also U.S.

Dep’t of Education, The Federal Role in Education,

https://www2.ed.gov/about/overview/fed/role.html.

From our nation’s birth, states, not the federal

government, have borne the responsibility of

financing, managing, and supporting public

education through locally chosen school boards that

govern their community schools. Public education

was omitted from those functions delegated to our

central government in an effort to preserve a federal

system of state sovereigns and to avoid a national

government. See Kern Alexander & M. David

Alexander, American Public School Law at 119

(Wadsworth Cengage Learning, 8th ed. 2012).

any child may reasonably be expected to succeed in life if he is

denied the opportunity of an education. Such an opportunity,

where the state has undertaken to provide it, is a right which

must be made available to all on equal terms.”); Wisconsin v.

Yoder, 406 U.S. 205, 221 (1972)(“education prepares individuals

to be self-reliant and self-sufficient participants in society.”).

7

States fulfill their public education mission in

a variety of ways. Some operate county-based school

districts of similar size, while others allow districts of

widely varying size. 4 In some, like Pennsylvania,

most school board members are elected. The Center

For Public Justice, What I s T he Role O f S chool

Board s?, (l a st acce sse d N o v . 13, 2 01 9 ),

https://www.cpjustice.org/public/page/content/cie_faq

_school_boards. In others, like Michigan, some school

board members are elected and some are

appointed. Id. And eighteen states operate a program

by which state funds are directly or indirectly

provided to private schools through “voucher” or taxcredit programs. EdChoice, Fast Facts on School

Choice,

(last

modified

May

28,

2019)

http://www.edchoice.org/our-resources/fast-facts.

Significantly, all states in the U.S. provide for

public education through their own constitutions. 5

Maryland, for example, operates 24 county-based school

districts.

Maryland

Department

of

Education,

http://www.marylandpublicschools.org/about/Pages/directory.as

px. Florida operates 67. Florida Department of Education,

http://www.fldoe.org/core/fileparse.php/7507/urlt/1718Profiles.p

df. Illinois operates over 850 school districts of varying sizes.

Illinois

State

Board

of

Education,

https://www.isbe.net/Documents/reorg_history.pdf. The largest

Illinois district serves over 350,000 students, Chicago Public

Schools, CPS Stats and Facts, https://cps.edu/About_CPS/At-aglance/Pages/Stats_and_facts.aspx, and the smallest serves 33.

Regional Office of Education #28, Ohio Community High School

District #505, http://www. bhsroe.org/public-schools/ohio505/.

5 Ala. Const. art. XIV, § 256; Alaska Const. art. VII, § 1; Ariz.

Const. art. XI, § 1; Ark. Const. art. XIV, § 1; Cal. Const. art. IX,

§§ 1, 5; Colo. Const. art. IX, § 2; Conn. Const. art. VIII, § 1; Del.

Const. art. X, § 1; Fla. Const. art. IX, § 1; Ga. Const. art. VIII, §

1, ¶ I; Haw. Const. art. X, § 1; Idaho Const. art. IX, § 1; Ill. Const.

art. X, § 1; Ind. Const. art. VIII, § 1; Iowa Const. art. IX, 2nd, §§

4

8

Seven have taken the commitment further, by

enacting constitutional provisions guaranteeing a

level of quality or “adequacy” in public education to

all residents. 6 States impose numerous transparency

and accountability requirements on their public

schools to ensure state dollars are spent responsibly

and fairly, in furtherance of the state’s educational

mission. 7

1, 3; Kan. Const. art. VI, §§ 1, 6; Ky. Const. § 183; La. Const. art.

VIII, §§ 1, 11 & 13; Maine Const. art. VIII, Pt. 1, § 1; Md. Const.

art. VIII, §§ 1, 3; Mass. Const. Pt. 2, Ch. 5, § 2; Mich. Const. art.

8, §§ 1, 2; Minn. Const. art. XIII, § 1; Miss. Const. art. 8, §§ 201,

206 & 206A; Mo. Const. art. IX, §§ 1(a), 3(a) & 3(b); Mont. Const.

art. X, § 1; Neb. Const. art. VII, § 1; Nev. Const. art. XI, §§ 1, 2

& 6; N.C. Const. art. IX, §§ 1, 2; N.D. Const. art. VIII, §§ 1–4;

N.H. Const. Pt. 2, art. LXXXIII; N.J. Const. art. VIII, § 4, ¶¶ 1,

2; N.M. Const. art. XII, §§ 1, 4; N.Y. Const. art. XI, § 1; Ohio

Const. art. XI, § 2; Okla. Const. art. XIII, §§ 1, 1a; Or. Const. art.

VIII, §§ 3, 4 & 8; Pa. Const. art. III, § 14; R.I. Const. art. XII, §§

1, 2; S.C. Const. art. XI, § 3; S.D. Const. art. VIII, §§ 1, 15; Tenn.

Const. art. XI, § 12; Texas Const. art. XII, §§ 1, 3 & 5; Utah

Const. art. 10, §§ 1, 2 & 5; Vt. Ch. II, § 68; Va. Const. art. VIII, §

1, 2; Wash. Const. art. IX, § 1, 2; W.Va. Const. art. 12, §§ 1, 5 &

12; Wis. Const. art. X, § 3; Wyo. Const. art. 7, §§ 1, 8 & 9.

6 Ga. Const. art. VIII, § 1, ¶ I; Ill. Const. art. X, § 1; Maine

Const. art. VIII, Pt. 1, § 1; Mich. Const. art. 8, §§ 1, 2; Mo.

Const. art. IX, §§ 1(a), 3(a) & 3(b); N.H. Const. Pt. 2, art.

LXXXIII; Wash. Const. art. IX, § 1, 2.

7 See, e.g. California Public Schools Accountability Act,

Cal.Educ.Code § 52050.5: “(i) The statewide accountability

system must include rewards that recognize high achieving

schools as well as interventions and, ultimately, sanctions for

schools that are continuously low performing…”; Delaware

Accountability for Schools, Districts and the State, Del. Code

Ann. Tit. 14, § 103 (1.1): “All public schools, including charter

schools, reorganized and career technical school districts and the

state shall be subject to the calculation and reporting of

Adequate Yearly Progress (AYP) as prescribed by the federal

Elementary and Secondary Education Act (ESEA), 20 U.S. C.A.

9

The overwhelming majority (84%) of K-12

students in the nation, over 50 million of them, are

educated in traditional public schools. Only six

percent are enrolled in charter schools, and 10.2% are

enrolled in private schools. Network for Public

Education, Grading the States (June 2018),

https://networkforpubliceducation.org/grading-thestates/. Seventy-five percent of private school

students are enrolled in religious schools. Id.

In Montana, nearly 150,000 students attend

public elementary and secondary schools. Office of

Public Instruction, Facts About Montana Education

2019, https://opi.mt.gov/Portals/182/Page%20Files/

Superintendent's%20Folder/FactsAboutMontanaEdu

cation.pdf?ver=2019-04-02-121817-760.

Roughly

14,000 students attend private schools, id., and

nearly 70 percent of K-12 private schools in the state

are religiously affiliated. Brief for Petitioner at 6.

According to Petitioners, in 2019, 40 students were

awarded scholarships through the State-funded,

private-school scholarship program at issue in this

case. Brief for Petitioner at 12.

Thirty-eight

states

have

constitutional

provisions barring aid to religious institutions.

Respondents’ Brief at 9. Twenty-one states have

§6301 et seq. Additionally, public schools, including charter

schools, reorganized and vocational technical school districts

shall be subject to the applicable rewards, sanctions and other

accountability activities as prescribed in this regulation”;

Florida Educational Funding Accountability Act, FL ST §

1010.215

(5)(a):

“5)

The

annual

school

public accountability report required by ss. 1001.42(18)

and 1008.345 must include a school financial report …. to better

inform parents and the public concerning how funds were spent

to operate the school during the prior fiscal year....”

10

placed limits on public funding to private and

religious schools specifically. 8

Montana’s constitutional prohibition on

funding to religious schools is rooted in its dedication

to funding public schools, and fully consistent with

the U.S. Constitution. The delegates to Montana’s

1972 constitutional convention passed the no-aid

provision after considerable discussion about whether

to prohibit “indirect” aid to religious schools, and

whether to allow pass-through of federal funds. The

delegates decided to do both, noting the importance of

support for public education as a primary concern:

DELEGATE BURKHARDT:…[W]e did

very seriously consider the issue and

here are some of the major points which

came up. Number one, on line 3: “The

primary and significant advantage

secured by the present provision is the

unequivocal support it provides for a

strong public school system.….The

growth of a strong, universal, and free

educational system in the United States

has been due in part to its exclusively

public character. Under federal and

state mandates to concentrate public

8 Ala. Constitution art. XIV, § 263; Ark. Const. art. 14, § 2; Cal.

Const. art. 9, § 8; Colo. Const. art. IX, § 7; Del. Const. art. X, §

3; Ga. Const. Art. 8, § 5, Par. VII; Haw. Const. art. X, § 1; Ky.

Const. § 189; Mass. Const. art. XVIII; Mich. Const. art. 8, § 2;

Minn. Const. art. XIII, § 2; Miss. Const. art. 8, § 208; Mo. Const.

art. IX, § 8; Mont. Const. art. V, §11(5) & art. X, §6; Neb. Const.

art. VII, § 11; N.C. Const. art. II, § § 6,7; N.M. Const. art. XII, §

3; S.C. Const. art. XI, § 4; Tex. Const. art. VII, § 5; Va. Const.

art. VIII, §10; Wyo. Const. art. 7, § 8.

11

funds in public schools, our educational

system has grown strong in an

atmosphere free from divisiveness and

fragmentation. Any diversion of funds or

effort from the public school system

would tend to weaken that system in

favor of schools established for private or

religious purposes.”

Montana Constitutional Convention 1971-1972

transcript Vol. VI, p. 2008-2009 (Mont. Legis.

& Legis. Council 1981), https://courts.mt.gov/

portals/189/library/mt_cons_convention/vol6.p

df.

Since our nation’s founding, states have

adopted constitutional provisions that embody

principles in the federal constitution, but strike

different balances based on state preference. No two

clauses have inspired more balancing, perhaps, than

the very first words of the Bill of Rights, the religion

clauses of the First Amendment. This Court has

wrangled with these clauses on numerous occasions,

recognizing “that there is ‘play in the joints’ between

what the Establishment Clause permits and the Free

Exercise Clause compels.” Trinity Lutheran, 137 S.Ct.

2012, 2019 (2017), citing Locke, 540 U.S. at 718.

When addressing state funding of public

education, some states have decided to enforce a

stronger “establishment” prohibition, at times tipping

the balance in its favor over the “free exercise”

requirement; but that difference is tolerable under

the federal Constitution and something the framers

expected states to do. See Locke, 540 U.S. at 722-723

(noting that at the time of the founding, many states

12

included in their constitutions prohibitions on tax

funds going to the ministry). In other words, when it

comes to the tug of war between the Establishment

and Free Exercise Clauses, states -- with some limits

-- have a right to decide what weight gets put on

either side of the rope. Under the principles of

federalism, states should be allowed to decide that

they do not wish to fund religious education through

their own state constitutions and statutes enacted

through political processes.

The Montana Supreme Court’s decision to

follow its constitutional mandate to refrain from

funding religious institutions is not subject to strict

scrutiny because it is not singling out religious

institutions for disfavored treatment, but addressing

the use of public funds for religious instruction. The

clear purpose behind Montana’s policy, reflected in

the constitutional convention transcript, is to support

public education by choosing not to fund “a distinct

category of instruction,” Trinity Lutheran, 137 S.Ct.

at 2023, citing Locke, 540 U.S. at 721. Religious

schools are denied direct or indirect state funding not

because of what they are, but because of what they

propose to do – use the funds to induce religious faith.

See id. (“Davey was not denied a scholarship because

of who he was; he was denied a scholarship because of

what he proposed to do—use the funds to prepare for

the ministry.”) This policy choice is consistent with

states’ historic desire to steer away from state funding

of religious endeavors, thereby promoting religious

freedom and devoting scarce public funds to public

education. And, while this Court need not reach the

question of whether a secular education at religiously

affiliated schools is constitutionally permissible,

13

(Respondents’ Brief at 9), the distinction may be one

without

a

difference,

because

exposing

impressionable young children at various levels of

emotional and psychological development to a

religious school setting despite a secular curriculum

may be enough to convey religious dogma in a manner

that amounts to de facto establishment.

A. Even if Montana’s decision not to fund

religious uses of public funds is subject

to strict scrutiny, it has numerous

compelling interests for doing so.

The Montana “no-aid” provision was readopted

by the delegates to the Montana Constitutional

Convention of 1972, with an added subsection

allowing pass-through of federal funds to private

schools. Espinoza v. Montana Dept. of Revenue, 435

P.3d 603 (Mont. 2018). The delegates to that

convention were clear that by re-adopting a

prohibition on direct or indirect payment of public

funds “for any sectarian purpose or to aid any church,

school, academy… controlled in whole or in part by

any church, sect, or denomination,” id. at 609, citing

Mont. Const. art. X, §6 (2019), they were acting on

their “strong commitment to maintaining public

education and ensuring that public education

remained free from religious entanglement,” and

giving Montana’s public schools “unequivocal

support.” Espinoza, 435 P.3d at 610.

Far

from

evidencing

impermissible

discrimination, this implementation of the state’s

constitutional requirement in the least restrictive

manner possible is fully in accord with the mandate

14

of the federal Constitution. Unlike the “policy

preference for skating as far as possible from religious

establishment concerns” offered by Missouri in

Trinity Lutheran, Montana has shown several

compelling concerns leading to its adoption of the

state constitution’s “no-aid” provision, and its

Supreme Court’s decision to invalidate the tax credit

scholarship program.

First, Montana’s decision to re-adopt a strong

anti-establishment position in its state constitution is

consistent with 200 years of state “disestablishment”

efforts designed to protect religion from state

entanglement. James Madison’s Memorial and

Remonstrance Against Religious Assessments, itself is

a petition urging the Virginia legislature not to pass

a bill allowing the direction of public funds to

Christian societies. Public financial backing of

religious endeavors, Madison explained, is not

necessary to support civil government; it is a means

of supporting religion, and would destroy the

“moderation and harmony” that had developed

between religious sects. James Madison, Memorial

and Remonstrance Against Religious Assessments at

4-5.

States’ longstanding disestablishment efforts

are rooted in the notion that public funding of

religious endeavors inevitably leads to oversight and

regulation. In the very early days of the American

colonies, religion was heavily regulated.

See

Hosanna-Tabor Evangelical Lutheran Church and

School v. E.E.O.C., 565 U.S. 171, 183 (2012)(“In

Virginia, for example, the law vested the governor

with the power to induct ministers presented to him

by parish vestries.”) (citation omitted). States made a

15

conscious

effort

to

change

this

through

disestablishment, to avoid state interference with

religion and division among the body politic. Carl H.

Esbeck, When Accommodations for Religion Violate

The Establishment Clause: Regularizing The

Supreme Court’s Analysis, 110 W. Va. L. Rev. 359,

368-369 (2007).

Indeed, the deliberate tension and resulting

balance between the Establishment and Free

Exercise Clauses is intended to create a role for

government in which it refrains from supporting any

religion so that all religions may exist without

government regulation and individuals may worship

as their consciences dictate. In future rulings, this

Court warned against the idea of excessive

entanglement as a grave Establishment Clause

concern, adding it to its analytical framework in

Lemon v. Kurtzman, 403 U.S. 602 (1971). Based on its

prior rulings, this Court added the consideration of

“excessive entanglement” to the “secular purpose”

requirement to acknowledge its concern with state

infringement on practices of religion by becoming too

intermingled with its tenets and operations.

In this case, the Court can reaffirm our nation’s

historic struggle to maintain government neutrality

toward religion, and with it religious freedom. The

balance between these concerns, reflected in the

religion clauses, strives to have government power

“reach actions only, & not opinions,” and to erect “a

wall of separation between Church & State.” Thomas

Jefferson, Letter to the Danbury Baptists (Jan. 1,

1802), http://www.loc.gov/loc/lcib /9806/danpre.html.

Montana’s no-aid provision reflects an important

16

historical commitment to keeping government out of

the business of religious education and training.

The Montana constitution embraces the core

principle that taxpayer support for religious

education not only harms public schools but also

undermines true religious liberty by diverting public

funds to religious uses, inviting state interference

with religious institutions, 9 and fostering religious

organizations’ dependence on government largesse.

These are basic notions that date back to the founding

of the nation, and Montana should have the

constitutional authority to promote them.

States have wide latitude to draft their state

constitutions to suit the policy concerns of their own

populace. Indeed, “[t]he state constitutions are based

on diverse understandings and philosophies of

government, are substantially easier to amend than

the U.S. Constitution,” and “provide for direct citizen

involvement in the process of amendment and change

(unlike the federal constitution).” Advisory

Commission on Intergovernmental Relations, State

Constitutions in the Federal System: Selected Issues

9 With state financial support often comes state regulation; and

state policy priorities do not always align with religious tenets.

A state may require private schools to abide by certain rules as

a condition of participation in a state funding program. For

example, a Maine program makes public funding available for

private school tuition when the local district does not offer a

secondary school. To participate in the program, a private school

must agree to refrain from discriminating on various bases. 5

Me. Rev. Code §4553(10)(G)(prohibiting discrimination in

educational opportunity “on the basis of sexual orientation or

gender identity, except that a religious corporation, association

or organization that does not receive public funds is exempt from

this provision….”)(emphasis added).

17

and Opportunities for State Initiatives at 2 (Jul.

1989), https://library.unt.edu/gpo/acir/Reports/policy/

a-113.pdf. 10 Our federal system leaves states in

charge of policy matters of concern to their citizens

and “left open to them by the very incompleteness of

the U.S. Constitution.” Id. at 8.

Second, Montana’s constitution, like those of

other states, seeks to avoid entanglement with, and

accompanying regulation of, religious institutions by

refraining from supporting religious instruction with

public funds. Respondents’ Brief at 17-23. This Court

long has recognized that the Establishment Clause

bars a state from enacting curriculum and related

requirements in the public schools where the purpose

“either is the advancement or inhibition of religion.”

School Dist. of Abington Township v. Schempp, 374

U.S. 203, 223 (1963). Accordingly, the Court has

invalidated required exercises at the opening of the

school day that include reading of the Bible and

recitation of the Lord’s prayer, id. at 225; the required

teaching of creationism, Edwards v. Aguillard, 482

U.S. 578, 593 (1987); and a legal bar on teaching

evolution science because it conflicts with religious

views, Epperson, 393 U.S. at 107. “While study of

The Advisory Commission on Intergovernmental Relations

was a bipartisan agency created by Congress in 1959 to monitor

and study the federal government’s relationships with state and

local government. Before it was discontinued in 1996, it

convened government officials and issued reports on issues

affecting federal-state-local government interactions, including

a report required by the Unfunded Mandates Reform Act of

1995. Center for the Study of Federalism (updated Jun. 3, 2019),

http://encyclopedia.federalism.org/index.php/U.S._Advisory_Co

mmission_on_Intergovernmental_Relations.

10

18

religions and of the Bible from a literary and historic

viewpoint, presented objectively as part of a secular

program or education need not conflict with the First

Amendment’s prohibition, the State may not adopt

programs or practices in its public schools … which

‘aid or oppose’ any religion” and “[t]his prohibition is

absolute.” Id. at 106 [citation omitted].

Consistent with these decisions, the Court has

invalidated the use of public funds for religious

instruction. In Lemon itself, this Court considered two

such state statutes – Pennsylvania’s, reimbursing

private schools for expenses including teacher

salaries, and Rhode Island’s, paying a salary

supplement directly to private school teachers. This

Court ruled that both statutes enabled public aid to

go to “church-related educational institutions,” and

ruled them unconstitutional in light of the “three

main evils against which the Establishment Clause

was intended to afford protection: ‘sponsorship,

financial support, and active involvement of the

sovereign in religious activity.’” Lemon, 403 U.S. at

607, 612 (citation omitted). An attempt to fund only

the “secular” component of the religious schools’

operations, this Court held, immersed the states

unlawfully in those operations. Id. at 613.

This Court has rejected some attempts to

invalidate state programs that limit funding to

sectarian institutions when there is a plausible

secular purpose, reflecting the Court’s “reluctance to

attribute unconstitutional motives to the states…”

Mueller v. Allen, 463 U.S. 388, 394-395 (1983). The

Court has, since Mueller, found certain types of

neutral public support of religious institutions and

schools permissible under the Establishment Clause,

19

but it has never held such support to be required

under the Free Exercise Clause. The central tenet -that state governments must avoid excessive

entanglement with religion – abides. Committee for

Pub. Educ. and Religious Liberty v. Nyquist, 413 U.S.

756, 774 (1973). And this Court has never held that a

state must ignore its significant historic concerns

about entanglement and abandon its sovereign policy

choice to support public schools to direct public money

to fund religious instruction. On the contrary, it has

recognized that public support of religious instruction

carries special apprehensions: “That early state

constitutions saw no problem in explicitly excluding

only the ministry from receiving state dollars

reinforces our conclusion that religious instruction is

of a different ilk.” Locke, 540 U.S. at 723.

Finally, and importantly, Montana’s choice to

restrict public funding to private and/or religious

schools is rooted in its dedication of public dollars to

public schools. As the Montana constitutional

delegates recognized, funneling public money to

private schools does not propel improvement of public

education, but rather, drains already limited

resources and dilutes broad community support,

undermining the very schools that most American

children, including low-income children, attend.

Indeed, many state constitutions make clear

their strong commitment to public education by

restricting in various ways the flow of public money

to private and/or religious schools. Nebraska’s state

constitution, for example, states “Notwithstanding

any other provision in the Constitution, appropriation

of public funds shall not be made to any school or

institution of learning not owned or exclusively

20

controlled by the state or a political subdivision

thereof”… “All public schools shall be free of sectarian

instruction.” “All such fines, penalties, and license

money shall be appropriated exclusively to the use

and support of the common schools in the respective

subdivisions where the same may accrue.” Neb.

CONST. Art. VII, § 11. Michigan’s constitution

similarly prohibits “public monies or property” from

being “appropriated or paid” to either “aid or maintain

any private, denominational or other nonpublic . . .

school,” or “to support the . . . employment of any

person at any such nonpublic school.” Mich. Const.

art. 8, §2. These provisions reflect concerns not

motivated by a hostility to religion, but by the dual

goals of supporting public schools and remaining

neutral with respect to religion. 11

The Montana constitutional provision at issue

in this case, and its Supreme Court’s application of it

to invalidate the tax credit scholarship program,

reflects its populace’s choice to prohibit public funding

of such religious education, a choice fully consistent

with the values secured by the religion clauses of the

First Amendment to the United States Constitution.

When a state government chooses not to support

religion with public funds, a court cannot presume its

motive to be suppression of religious conduct, but

should presume a constitutional goal to avoid “the

divisiveness, strife, and violations of conscience that

forcing taxpayers to fund the religions of others

involves.” Laura S. Underkuffler, The Separation of

11 See, e.g. Masterpiece Cakeshop, Ltd. v. Colorado Civ. Rights

Commn., 138 S. Ct. 1719, 1732 (2018)(First Amendment

requires that laws be applied in a manner neutral toward

religion).

21

the Religious and the Secular: A Foundational

Challenge to First Amendment Theory, 2 First Amend.

L. Rev. 179, 185 (2004); see also Mueller v. Allen, 463

U.S. at 394-395 (noting Court’s “reluctance to

attribute unconstitutional motives to the states”). As

Locke makes clear, Montana’s decision – which

reflects that state’s choice about how best to protect

the values of religious liberty and freedom of

conscience embodied in its state constitution – is

entitled to deference and respect. See Locke, 540 U.S.

at 723-725 (given Washington’s historic and

substantial antiestablishment interest, the denial of

public funding for vocational religious instruction was

not inherently constitutionally suspect).

B. Montana’s decision not to allow public

funds to flow indirectly to religious

schools is consistent with this Court’s

holdings that states need not fund

religious education.

This nation and this Court have consistently

supported the policy goals behind Montana’s “no-aid”

provision as crucial state interests overcoming any

accompanying burden on religion.

In Locke, this Court recognized the historical

reluctance to fund degrees that were “devotional in

nature or designed to induce religious faith,” 540 U.S.,

at 716, and recognized the “play in the joints” between

the Constitution’s religion clauses. It acknowledged

the state of Washington’s policy not to fund devotional

theology degrees as part of its scholarship program to

be “in keeping with the State's antiestablishment

interest in not using taxpayer funds to pay for the

22

training of clergy; in fact, the Court could ‘think of few

areas in which a State's antiestablishment interests

come more into play,’ …. The claimant in Locke sought

funding for an ‘essentially religious endeavor ... akin

to a religious calling as well as an academic pursuit,’

and opposition to such funding ‘to support church

leaders’ lay at the historic core of the Religion

Clauses.” Trinity Lutheran, 137 S.Ct. at 2023, citing

Locke 540 U.S. at 721–722 (citations omitted). The

question in Locke was whether the state of

Washington could prohibit use of public scholarship

money to pursue a degree in devotional theology. This

Court said it could. Locke, 540 U.S. at 719. The Court

did not disturb that finding in Trinity Lutheran.

Although this Court has held that the

Establishment Clause permits states, under certain

circumstances, to allow religious schools to benefit

from public funding programs in an indirect manner,

Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1,

10-11 (1993), it has also said that states are not

required to do so in all circumstances. Locke, 540 U.S.

at 719 (“Under our Establishment Clause precedent,

the link between government funds and religious

training is broken by the independent and private

choice of recipients.)(citations omitted). This Court

has expressed skepticism at the constitutionality of a

program ostensibly designed for “school choice,” but

acting as an “ingenious plan[] for channeling state aid

to sectarian schools.” See Committee for Public Educ.

& Religious Liberty v. Nyquist, 413 U.S. 756, 785

(1973), and warned that a government’s secular

purpose may not be “a sham, * * * merely secondary

to [its] religious objective.” McCreary Cnty. v. Am.

Civil Liberties Union of Kentucky, 545 U.S. 844, 864

23

(2005). In Bowen v. Kendrick, this Court had made

clear that a government program is unconstitutional

if, in its application, public aid is directed to religious

organizations that are “pervasively sectarian” or that

use the public funds to “inculcate the views of a

particular religious faith.” 487 U.S. 589, 621 (1988).

The Court has found the Establishment Clause

permits otherwise neutral public programs to benefit

religious schools in some instances, see, e.g., Agostini

v. Felton, 521 U.S. 203, 225 (1997) (“… we have

departed from the rule relied on in Ball that all

government aid that directly assists the educational

function of religious schools is invalid”). But it has

never held that a state is required to fund religious

schools despite its strong state policy of directing

public funds to public schools.

The Free Exercise Clause prevents government

from “plac[ing] a substantial burden on the

observation of a central religious belief or practice,”

Hernandez v. Commissioner, 490 U.S. 680, 699 (1989),

but government’s mere refusal to pay the cost of a

pervasively religious education – even if it pays for

the secular counterpart – does not impose any such

burden. It may not violate the Establishment Clause

for a state to operate such programs when there is no

purpose or effect of advancing religion, but it is not

compelled by the Free Exercise clause. Locke, 540

U.S. at 718-719. The First Circuit has held so

explicitly. Eulitt ex rel. Eulitt v. Maine, Dep’t of Educ.,

386 F.3d 344 (1st Cir. 2004)(“[t]he fact that the state

cannot interfere with a parent’s fundamental right to

choose religious education for his or her child does not

mean that the state must fund that choice.”).

24

If the Court holds now that any state

reluctance to fund religious instruction manifests a

hostility toward religion that, ipso facto, violates the

Free Exercise Clause, any “play in the joints” has

disappeared, and the balance has tipped precipitously

in Free Exercise’s favor. There is no longer a set of

policy choices that states can select with respect to

public funding for religious instruction that are

allowed by the Establishment Clause but not required

by the Free Exercise Clause. Decades of state choices

to act on historic entanglement concerns by drawing

the line closer to the Establishment Clause than the

federal constitution requires, but not to the point that

the Free Exercise Clause forbids, will disappear.

A holding that the U.S. Constitution forbids

states from balancing the religion clauses in that way

would overturn decades of state jurisprudence finding

state constitutional provisions with more pronounced

separation requirements have independent vitality

from the federal constitution. Alexander at 223-226,

citing, e.g., University of the Cumberlands v.

Pennypacker, et al., 308 S.W. 668 (Ky. 2010),

Matthews v. Quintin, 362 P.2d 932 (Alaska 1961),

Spears v. Honda, 449 P.2d 130 (Haw. 1968); Bd. of

Cnty. Commissioners v. Idaho Health Facilities

Authority, 531 P.2d 588 (Idaho 1974); Knowlton v.

Baumhover, 166 N.W. 202 (Iowa 1918); Attorney

General v. Sch. Committee of Essex, 439 N.E.2d 770

(Mass. 1982); Chittenden Town Sch. Dist. v. Dep’t of

Educ., 738 A.2d 539 (Vt. 1999). To hold as much would

be to apply this Court’s 2017 Trinity Lutheran’s

narrow ruling unnecessarily widely, and to turn away

from decades of precedent allowing flexibility to the

states.

25

II.

PROGRAMS LIKE MONTANA’S

INVALIDATED TAX CREDIT SCHEME

HARM PUBLIC EDUCATION.

School voucher schemes and tax credit

scholarship arrangements, promoted as vehicles for

“school choice” ostensibly allowing families that

otherwise could not afford private schools to choose

them, often benefit only wealthier families who can

afford the significant portion of private school tuition

that vouchers or scholarships do not cover. These

wealthier families can use such programs to defray

private school costs that they already have decided to

incur. These programs shift public funds away from

the local public school system, to the detriment of

students who have no real choice but to remain.

The programs purposely skirt state and federal

legal constrictions, such as Montana’s no-aid

provision, by funneling state dollars through parents,

or scholarship nonprofit corporations that in turn pay

some portion of tuition at private schools. While

vouchers create a direct expense to the state in the

form of funding some portion of a student’s tuition at

a private school, a scholarship funded through a tax

credit program is a loss in potential state revenue

through tax credits. National Conference of State

Legislatures, Fiscal Impact of Vouchers and

Scholarship

Tax

Credits

(2013)

http://www.ncsl.org/research/education/fiscal-impactof-school-vouchers-and-scholarship-tax-credits.aspx.

Voucher and similar programs did not arise in

states in any significant way until this Court

invalidated segregation in public schools by race in

Brown v. Board of Education. See Alexander at 219.

26

Shortly after that landmark decision, the state of

Virginia allowed counties to close public schools, to

open private academies for white students only, and

to award parents tuition vouchers and tax credits. Id.

This Court eventually found that program violative of

the Fourteenth Amendment’s Equal Protection

Clause. Griffin v. County Sch. Bd. of Prince Edward

Cnty., 377 U.S. 218, 232 (1964). Since then, vouchers

and similar schemes have become more sophisticated.

Tax credit scholarship programs have grown

exponentially in recent years, and now operate in 18

states. In 2005, roughly 50,000 students received

some form of tax credit scholarship; in 2017 that

number was 256,000. Kevin Carey, DeVos and Tax

Credit Vouchers: Arizona Shows What Can Go Wrong,

New

York

Times

(Mar.

2,

2017)

https://www.nytimes.com/2017/03/02/upshot/arizonashows-what-can-go-wrong-with-tax-credit-vouchers.

html.

In practice, tax credit scholarship programs

have effects similar to those of traditional voucher

programs, drawing resources and support away from

public schools, and failing to help the vast majority of

students.

A. Tax credit scholarship programs like

Montana’s divert money otherwise

headed for state coffers to private schools.

Programs like Montana’s divert funds

otherwise bound for public coffers through tax

collection to private schools, thereby undermining

public schools by shorting state treasuries, an

important source of educational dollars. Indeed, tax

27

credit programs, like tax deductions, reduce state

revenues. See, e.g., Arizona Christian School Tuition

Organization v. Winn, 563 U.S. 125, 157-158

(2011)(Kagan, J., dissenting). The Montana statute

itself describes the purpose of Student Scholarship

Organizations in terms of parental choice via private

contributions through a “tax replacement programs.”

Espinoza, 435 P.3d at 606. The fiscal note

accompanying the Montana bill estimated that the

program would reduce the state’s general fund

revenues by up to $9.6 million annually by fiscal year

2022. Id. at 616, n.3 (Gustafson, J., concurring).

Local public school districts in Montana, like

those throughout the nation, are creatures of state

law, and depend on states for a large percentage of

their operating funds. In school year 2015-16, only

eight percent of all public elementary and secondary

schools’ revenue came from federal sources, while

forty-seven percent came from state sources, and

forty-five percent came from local sources. National

Center for Education Statistics, Public School

Revenue Sources, https://nces.ed.gov/programs/coe

/indicator_cma.asp (updated May 2019). The

percentage from each source differed from state to

state. In Illinois, for example, the federal-state-local

percentages were 8-24-67, while in Vermont they

were 7-89-4. Id. In Montana, forty-eight percent of

public school revenues came from the state. Id.

Although proponents maintain that tax credit

scholarship programs do not involve actual

government expenditures, in reality the economic

effect can be similar. See Arizona, 563 U.S. at 141-142.

Instead of directly funding private school

scholarships,

the

government

reimburses

28

sophisticated taxpayers for providing funding to

private schools on the state’s behalf. The end result is

the same as under a direct voucher program: a boost

in resources for private schools and frequently a

reduction in resources for public education and other

services. Institute on Taxation and Education Policy,

How School Voucher Tax Shelters Undermine Public

Education

(2017),

https://itep.org/wp-content/

uploads/AASA_Public_Loss_Private_Gain_F2.pdf.

Take Arizona, a state where tax credit

scholarships have grown since enactment of the first

program in 1998.

Arizona describes its current

programs as follows:

Arizona provides four income tax credits

for taxpayer donations to certified school

tuition organizations (STOs) for the

purpose of providing scholarships to

students to attend Arizona private

schools. Two credits are for donations

made by individual taxpayers (original

and switcher)1 A.R.S. §§ 43-1089 and 431089.03 and two credits are for corporate

donations

(low-income

and

disabled/displaced), A.R.S. §§ 20-224.06

and 20-224.07 or A.R.S. §§ 43-1089.04,

43-1183

and

43-1184.

Corporate

donations can be claimed as a tax credit

against either the corporate income tax

or the insurance premium tax. The tax

credit programs have various start

dates: the original individual tax credit

program began in 1998, the low-income

corporate program began in 2006, the

29

disabled/displaced program began in

2009 and the switcher individual

program began in 2012.

Arizona Dep’t of Revenue, Office of Economic

Research & Analysis, School Tuition Organizations

Income Tax Credits in Arizona: Summary of Activity:

FY: 2016/2017 (Apr. 2019), https://azdor.gov/sites/

default/files/REPORTS_CREDITS_2018_fy2017private-school-tuition-org-credit-report.pdf.

Arizona’s tax credit scholarship program

allows state taxpayers to contribute $500-$1000 per

year to School Tuition Organizations (STOs), which

process tax credits for private school tuition

scholarships, and to obtain a credit on their state tax

bill. Ninety-three percent of money processed through

STOs in Arizona goes to religious schools. Tax credits

topped $160 million in 2016. The amount is allowed

to grow by 20% every fiscal year. Save Our Schools

Arizona (2019), https://sosarizona.org/ 2019/02/07/5things-you-need-to-know-about-stos/.

While its tax credit scholarship scheme grew,

Arizona’s financial support for public education

declined. Arizona has cut an estimated $4.5 billion

from public school funding since 2009, and continues

to cut K-12 spending. Arizona School Boards

Association, Arizona’s Unrestored Budget Cuts Part 1

(2017), https://azsba.org/wp-content/uploads/2017/04/

Unrestored-Budget-Cuts-Pt.1.jpg. According to the

state’s own tally, dollars otherwise headed to state

coffers as tax revenue totaled $350 million from 1998

to 2008. Arizona, 563 U.S. at 161 (Kagan, J.,

dissenting)(citations omitted). As of 2017, Arizona

had hit the $1 billion mark in scholarships granted.

30

Arizona Dep’t of Revenue, Office of Economic

Research & Analysis at 2.

As of 2017, seventeen states were diverting a

total of over $1 billion per year toward private schools

via tax credits and deductions. Nine of these states’

tax credit programs enabled contributors to eliminate

their state tax bill and to obtain a federal tax

deduction. 12

B. Tax credit scholarship programs support

private schools that are not accountable

to state taxpayers as public schools are.

At the heart of state efforts to support public

education are missions to improve student well-being

and achievement. States monitor progress on these

crucial goals through accountability measures. Public

schools must follow these requirements and publicly

report their progress; private schools often do not.

Taxpayers in states with tax credit scholarship

programs often cannot see how students who receive

scholarships to attend private schools are performing

or how the money is spent, and there are no clear

standards to protect against misuse of public funds.

12 Carl Davis, State Tax Subsidies for Private K-12 Education,

Rep. Institution for Taxation and Economic Policy (Oct. 12, 2016)

(updated May 2017), http://itep.org/ itep_reports/2016/10/statetax-subsidies-for-private-k-12-education.php#.WO0Lx4grJEY;

see also Carl Davis, and Sasha Pudelski, Public Loss Private

Gain: How School Voucher Tax Shelters Undermine Public

Education, School Superintendents Association & Institute of

Taxation

and

Economic

Policy

(May

2017),

https://itep.org/public-loss-private-gain-how-school-voucher-taxshelters-undermine-public-education/.

31

The GAO recently reported that of the 22 programs

currently operating in seventeen states (not including

Montana), only eight require that schools receiving

tuition dollars from the scholarship organizations

meet the minimal standard of state accreditation.

U.S. Government Accountability Office, Private

School Choice: Accountability in State Tax Credit

Scholarship Programs, GAO-19-664 (September

2019)

https://www.gao.gov/assets/710/701640.pdf.

The GAO noted that most states with tax credit

scholarship programs require participating schools to

teach core subjects and to meet minimum attendance

requirements, but few require financial audits or

reviews. Id.

Research indicates that students who

participate in voucher-type programs often lose

ground academically. See, e.g., Jonathan N. Mills &

Patrick J. Wolf, The Effects of the Louisiana

Scholarship Program on Student Achievement After

Four Years, Louisiana Scholarship Program

Evaluation

Report

#10

(Apr.

23,

2019),

http://www.uaedreform.org/wp-content/uploads/

Mills-Wolf-LSP-Achievement-After-4-Years-final.pdf;

Megan Austin, R. Joseph Waddington, & Mark

Berends,

Voucher

Pathways

and

Student

Achievement in Indiana’s Choice Scholarship

Program, RSF: The Russell Sage Foundation Journal

of the Social Sciences (2019), https://

www.rsfjournal.org/content/rsfjss/5/3/20.full.pdf.

Students with disabilities who participate in

state-supported voucher-type programs give up

considerable federal protections designed to ensure

their equal access to education under the Individuals

with Disabilities Education Act (“IDEA”), 20 U.S.C.

32

§1400 et seq, and Section 504 of the Rehabilitation Act

of 1973, 29 U.S.C. § 794. Whereas public schools must

provide eligible students with a free appropriate

public education through special education and

related services, private schools do not. A public

school district must only expend federal funds in an

amount “proportionate” to the number of private

school students attending schools in its borders. 20

U.S.C. §1412 (a)(10)(A). Many states further limit

IDEA’s already constricted reach in private schools by

requiring that parents waive their rights under the

law as a condition of accepting a voucher. (Wisconsin,

Tennessee, Colorado, Ohio, and the District of

Columbia allow for partial IDEA rights, while

Oklahoma, Florida’s McKay Scholarship, and Georgia

require parents to revoke all IDEA rights.) National

Council on Disability, School Choice Series: Choice &

Vouchers – Implications for Students with Disabilities

(Nov. 15, 2018), https://ncd.gov/sites/default/files/

NCD_Choice-Vouchers_508_0.pdf; U.S. Government

Accountability Office, Private School Choice: Federal

Actions Needed to Ensure Parents Are Notified About

Changes in Rights for Students with Disabilities,

GAO-18-94 (November 2017), https://www.gao.gov

/assets/690/688444.pdf.

Private schools do not have to hire licensed

teachers and are not subject to the academic

standards imposed on public schools. They are not

required to serve free or reduced lunch, offer

transportation, or, as discussed above, provide special

education services. This makes it more unlikely for

impoverished

families

in

socio-economically

segregated neighborhoods to take advantage of the

scholarships offered through these programs.

33

These failures in voucher and tax credit

scholarship programs’ design and implementation

belie any stated intention to promote school reform;

rather, their primary purpose is to provide public

resources to private, mostly religious schools. A

program genuinely designed to expand high-quality

educational options and to improve student outcomes

also presumably would impose public accountability,

oversight, and curricular control on any school—

public or private—that received public funding.

Where public tax dollars are involved, the public has

an interest in ensuring quality education is delivered.

The

Montana

program

creates

an

accountability structure for private schools that is far

more relaxed and basic than the extensive

accountability structure imposed on Montana’s public

schools.

While accountability structures for

Montana’s public schools literally fill books within the

Montana

Code

Annotated

and

Montana

Administrative Rules, those for private schools

participating in the program consist of one

subsection, Mont. Code Ann. § 15-30-3102(7), which

allows schools to receive scholarships if they are

“seeking” accreditation. Indeed, Montana’s public

schools are required by state law to seek and maintain

accreditation by the Montana Board of Public

Education, but there is no such requirement for

private providers generally, which “may” request

accreditation. Mont. Code Ann. § 20-7-102.

The Montana program runs contrary to the

policy concerns expressed by the state’s constitutional

delegates by draining public money and support for

public education, thereby threatening the number

and quality of public school options, the only viable

34

choices for the overwhelming majority of the state’s

students. Tax credit programs like this one hamper a

state’s ability to provide all of its students with free

public education. See Arizona, 563 U.S. at 147 (2011)

(Kagan, J., dissenting)(“…the Arizona private-schooltuition tax credit has cost the State, by its own

estimate, nearly $350 million in diverted tax

revenue.”)

Additionally, tax credit programs are not a

viable solution in many rural areas of the country

because these programs can strain funding resources

in communities that already have lower densities of

students and schools. Neil Campbell and Catherine

Brown, Vouchers Are Not a Viable Solution for Vast

Swaths of America, Center for American Progress

(March 3, 2017), https://www.americanprogress.org

/issues/education-k-12/news/2017/03/03/414853/

vouchers-are-not-a-viable-solution-for-vast-swathsof-america/. And tax credit/voucher programs provide

public funding to schools that can legally remove or

refuse to serve some students altogether. Kimberly

Quick, Second-Class Students: When Vouchers

Exclude, The Century Foundation (Jan. 11, 2017),

https://tcf.org/content/commentary/second-classstudents-vouchers-exclude/?session=1&agreed=1;

Rebecca Klein, These Schools Get Millions Of Tax

Dollars To Discriminate Against LGBTQ Students,

HuffPost (Dec. 15, 2017), https://www.huffpost.com

/entry/discrimination-lgbt-private-religious-schools

_n_5a32a45de4b00dbbcb 5ba0be. Public schools are

not able to reduce their fixed costs (such as facilities

costs) in proportion to students leaving for private

schools. When tax credit programs successfully

encourage families to leave public schools, therefore,

35

they result in less money going to the classroom for

students remaining in public schools.

CONCLUSION

If this Court overrules the Montana Supreme

Court by dramatically expanding the narrow

parameters of the 2017 Trinity Lutheran holding to

encompass state support of religious instruction, the

Court will undermine its own precedent recognizing a

state’s flexibility to balance the religion clauses

according to the priorities of its populace. A holding

that Montana must, under the Free Exercise Clause,

include religious schools in its tax credit program,

would strike at the heart of federalism, eliminating

any “play in the joints” between state support

permitted Establishment Clause and that required by

Free Exercise. The tension purposely designed into

these provisions would disappear, and Montana’s

decision to support public education would become

irrelevant.

For the reasons explained above, Amici urge

the Court to uphold the Montana Supreme Court’s

ruling.

36

Respectfully submitted,

Francisco M. Negrón, Jr.

Counsel of Record*

Chief Legal Officer

Sonja H. Trainor

National School Boards Association

1680 Duke Street, FL 2

Alexandria, VA 22314

(703) 838-6722

fnegron@nsba.org

November 15, 2019

37