An argument over a $150 tax credit in Montana could have broad effects for school choice nationally, potentially opening the door to expanded use of public funds to support students’ enrollment at private schools.

The U.S. Supreme Court will hear oral arguments Wednesday in Espinoza v. Montana Department of Revenue (Case No. 18-1195), a case brought by three Montana families who argue the state unconstitutionally prohibited religious schools from a program that would provide tax credits for donations to private school scholarship programs.

The case has been closely watched by advocates who hope to expand the use of publicly funded voucher and tax-credit scholarships. And it’s being watched by education groups that oppose such programs, fearing they will siphon away tax dollars that would be better spent on public schools.

For a thorough explanation, read this story by Education Week court reporter Mark Walsh. For a quick summary of why the case matters, here’s a run down.

Why it Matters for Other States

At issue in the case is a measure in the Montana state constitution that bars state entities from making “any direct or indirect appropriation or payment from any public fund or monies ... for any sectarian purpose or to aid any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination.”

Montana’s tax-credit scholarship program, passed in 2015, allowed for scholarships to be provided to religious schools, but the state’s Supreme Court upheld a determination by its Department of Revenue that doing so would violate that underlying law.

Montana is one of 37 states that have language barring aid to religious schools, sometimes referred to as “Blaine Amendments.” A ruling in favor of the families challenging the application of the law in question could cause dominoes to fall around the country.

Public Funds for Private Schools?

The Montana program provides tax credits of $150 per year to individuals and corporations that donate to tuition scholarship organizations. The state’s high court ruled that the program’s inclusion of religious schools as an education provider meant it violated the Montana constitution.

The state high court said that the Montana Constitution “more broadly prohibits ‘any’ state aid to sectarian schools and draws a more stringent line than that drawn by” the U.S. Constitution’s prohibition against government establishment of religion.

“By creating a diversionary scheme whereby money otherwise bound for the public treasury is diverted, the Legislature has created an indirect payment,” justices in the majority wrote.

But some have argued the tax credits don’t actually count as public funds so they aren’t governed by that part of the state’s constitution.

“The [law creating the tax-credit scholarships] diverts the funds before they ever become public monies,” which means the constitutional provision limiting the use of public funds does not apply, reads a dissenting opinion from Montana Justice Beth Baker.

A Consequential Case for School Choice

People on all sides of the private school choice debate agree that Espinoza v. Montana Department of Revenue a significant education case for the U.S. Supreme Court. Here are excerpts of amicus briefs filed by interested organizations in the case.

Alliance for Choice in Education, a Colorado-based organization that administers scholarship programs in eight states, argued in its brief that it violates the U.S. Constitution’s religious liberty protections when a “government program that provides broad public benefits” excludes institutions “simply because they are religious.” Private schools, often religiously affiliated, provide a option for families seeking alternatives to their zoned public schools, the brief argues.

“Excluding such schools from participation in religiously neutral school choice programs, as the Montana Supreme Court ordered, would hamper the goal of providing the greatest possible educational opportunity to the greatest number of students,” it says.

On the other hand, a coalition of education groups, led by the National School Boards Association, argued in a brief that while the court has found some types of public support of religious institutions to be allowed under the Constitution, this case would take such arguments a step further by arguing that such support is required.

“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,” the brief says.

Private schools may not be equipped to meet the needs of students with disabilities, opponents to school vouchers have argued. And religiously affiliated schools may bar admission of lesbian, gay, bisexual, or transgender students, or of students with LGBTQ parents, they argue.

Why Betsy DeVos Is Probably Watching This Case

U.S. Secretary of Education Betsy DeVos, a proponent of private school choice, has championed a proposed $5 billion program, which would provide tax-credits in exchange for contributions to scholarship programs in states that wish to participate.

DeVos has argued that those tax credits don’t amount to public funding, an argument that runs parallel to the debate in the Montana case.

The Supreme Court will hear arguments in Espinoza v. Montana Department of Revenue Wednesday, and Mark Walsh will provide courtroom coverage. Stay tuned.

Photo: Kelsey and Dusty Jones walk with their daughter, Cali, at Stillwater Christian School in Kalispell, Mont. Three different parents at Stillwater are plaintiffs in a case to be heard by the U.S. Supreme Court over Montana’s tax-credit scholarship program. —Tailyr Irvine for Education Week