Agudah Files Brief in Montana School-Choice Case


Montana is home to few Jews and has no Jewish schools, but Agudath Israel of America has weighed in on a state legal challenge, saying that the outcome could have broad ramifications for religious educational institutions around the country.

The case revolves around a tax-credit program that is used to fund grants to send children to private schools, including religious ones. Yet, a state agency refused to implement the program claiming that the program is a violation of Montana’s constitution, which contains a provision, known as a “Blaine Amendment,” barring any state funding of religious education. The amendments have met with increasing legal challenges in many states from school choice advocates.

The Agudah brief stresses the importance of the Montana case in clarifying the issue of such clauses to state constitutions, especially in light of a recent Supreme Court ruling which struck down a Missouri law that precluded religious organizations from a program to provide padding for playgrounds.

“The Supreme Court’s ruling in Trinity Lutheran Church stands for the proposition that a state ‘Blaine Amendment,’ such as that contained in both the Missouri and Montana Constitutions, that prohibit religious institutions from receiving public benefits, cannot under the Free Exercise Clause bar students attending religious schools from receiving government-funded scholarship assistance,” reads the brief.

The Supreme Court’s decision called the exclusion of institutions solely on the basis of religious affiliation “odious to our Constitution,” but did not directly address broader issues of state funding for religious institutions.

Rabbi Mordechai Biser, the Agudah’s Special Counsel, who co-authored the brief, told Hamodia that the Montana case has heightened significance, as it could serve as an important precedent for how the Supreme Court ruling is applied.

“Our argument is that after Trinity Lutheran, to deny students scholarship aid to attend the school of their choice, just because it happens to be a religious one, is a violation of the right to free exercise of religion,” he said.

The brief also notes that due to the centrality of Jewish education to Orthodox Jews, they are compelled to attend religious schools. The point is intended to further demonstrate the discriminatory nature of Montana’s law.

“To deny their children scholarships simply because they wish to attend a Jewish school is therefore not only discrimination based on the ‘use’ to which they would put the scholarship, but also on their status, or identity, as Orthodox Jews. Under Trinity Lutheran, the Free Exercise Clause prohibits such discrimination,” says the brief.

In 2015, Montana’s legislature passed a bill that granted $150 tax credits to individuals and companies who donate to a privately controlled scholarship fund to send children from low-income families to private schools, making no differentiation between non-sectarian and religious ones. Yet, after it was signed into law, the state’s own Department of Revenue refused to implement the program, claiming that it violated Montana’s constitution. The move was challenged by three mothers of students whose children attend a Christian school and qualify for the program. Represented by the Institute for Justice, the mothers won their suit in a lower court, but the decision is now being appealed in the state’s Supreme Court.

In light of the significance of how Trinity will be applied by courts around the country, the case has attracted wide interest. Agudah joined a broad base of religious-liberty and school-choice groups in supporting the three mothers’ claim. Notably, the U.S. attorney has filed a brief on their behalf as well, which is common in Federal cases, but far less so in state ones.

The ACLU and ADL have joined several other organizations in supporting the Department of Revenue’s argument.

Rabbi AD Motzen, National Director of State Relations for Agudath Israel, stressed the potential of Montana’s decision to be a trend-setter in how the laws governing funding for religious schools will be applied nationally.

“There may not be any Jewish schools in Montana, at least not yet, but this is a national issue, just as much as Trinity wasn’t just about mulch in playgrounds in Missouri,” he said. “We got involved because we have been advocating for school choice for all Americans for decades, and because the past has shown clearly that the decision in a courthouse in one state can very quickly affect the rights of people in the other 49.”