GLENDIVE – Children who attend religious schools should be able to get scholarships from Montana's school choice program, according to a ruling by a Flathead County District Court judge Thursday.
The court issued a preliminary injunction to stop the Department of Revenue from enforcing its new rule excluding children who attend religious schools from receiving the scholarship. Judge David Ortley ordered the injunction to stay in place until "further order of this court."
The scholarship program was enacted in May 2015 and provides tax credits up to $150 annually to individuals and donors who give money to private scholarship organizations. Those organizations then distribute the money to families who want to send students to private schools.
The Department of Revenue said a provision in the state constitution prevents any "direct or indirect appropriations or payment" from government to religious institutions or religiously affiliated schools.
The Department of Revenue is reviewing the district court order, it said in a statement Friday.
"At this early stage in our review, the department is considering its options," it stated. "The premise of the department’s rules for administering the new law remains the same. That is, the department is following the new law, Montana Code Annotated 15-30-3101, in which the legislature directs the department to administer the law in a constitutional manner. Articles V and X of the Constitution prohibit direct and indirect payments or appropriations to religious or sectarian schools."
State Sen. Llew Jones, R-Conrad, who wrote the bill creating the pilot program, said in October the department's rules to enact the law didn't follow legislative intent. The rules were adopted in December.
On Friday, Jones said he was glad to hear about the decision and that the issue is moving forward.
“I’ve wanted this matter settled,” he said. “It detracts from a focus on enhancing student opportunities for everyone.”
Jones said he expected an appeal from the department, but said it’s just the next step in getting a final decision.
“Students across the state will be better off when it’s finally here,” he said.
According to court documents, Ortley said the rule is a "barrier" to the mothers getting scholarships, which could cause "irreparable injury before their rights can be fully litigated."
Attorney Dick Komer of the Institute for Justice filed the lawsuit Dec. 15 on behalf of three mothers whose children attend Stillwater Christian School and wanted scholarships through the program.
Kendra Espinoza said she's excited and grateful her daughters now have a chance to get scholarships, according to a news release from the institute. Espinoza took on a second job and raised funds to pay her daughters' tuition to the private Kalispell school.
Komer argued Montana law only prevents the state from giving grants to religious entities and that the scholarships go to families, not schools.
A 2012 Montana District Court case ruled tax credits are not appropriations, and the state's Supreme Court agreed, though didn't rule on the tax credit component, which the department said leaves it open to further interpretation.