Supreme Court says Montana program aiding private schools must be open to religious schools

A divided Supreme Court on Tuesday endorsed a Montana tax incentive program that indirectly helps private religious schools, a major victory for those who want to see more public funding of religious institutions.

Chief Justice John G. Roberts Jr., writing for a conservative majority in the 5 to 4 ruling, said the Montana Supreme Court was wrong to strike down the program because of a provision in the state constitution that forbids public funds from going to religious institutions. The U.S. Constitution’s protection of religious freedom prevails, he said.

“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

The court’s four most consistent conservatives joined his opinion, while the court’s four liberals dissented.

The decision was a big win for school choice advocates such as Education Secretary Betsy DeVos, who favor government support of students seeking faith-based education. Public school advocates said such programs take away resources that should be used to improve the systems.

At issue was an initiative passed by the Montana legislature in 2015 that provided dollar-for-dollar tax credits up to $150 to those who donated to scholarship programs for low-income parents to send their children to private schools.

The program made no distinction as to whether parents could use the scholarships at religious or secular schools. About 70 percent of private schools in the state are religious.

The Montana Supreme Court said that ran counter to a state constitutional prohibition against using public funds for religious institutions and schools. Instead of saying the program could fund only secular schools, it struck down the tax credit program.