Espinoza v. DOR Is An Existential Threat to Montana’s Public Schools

Supreme Court of the USA
United States Supreme Court Building in Washington DC, USA.

Montana has forever valued our public schools even as we have struggled to fund them well enough.

Despite scarce resources from our frontier days to this moment, our public schools provide quality instruction to, for, and with the vast majority of Montana’s k-12 students. We educate in school communities as large as Billings with 15,000 students to 80 or so rural school communities of one teacher or two. We do it well.

We have expressed our historic and cultural commitment to public education in our 1972 constitution wherein we state: “It is the goal of the people to establish a system of education which will develop the full educational potential of each person. Equality of educational opportunity is guaranteed to each person of the state.”

And: “The legislature shall provide a basic system of free quality public elementary and secondary schools.”

And conclude: “The legislature, counties, cities, towns, school districts, and public corporations shall not make 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.”

Unfortunately, this last constitutional provision, a prohibition on expending public dollars on religious education, is under assault in the U.S. Supreme Court in the now-infamous Espinoza v. Montana Department of Revenue.

In 2015, after years of failed attempts, proponents of public school privatization for God and profit finally managed to get a bill (SB 410) creating a dollar for dollar income tax credit for individual and corporate donors to help fund private and religious school tuitions through the legislature and into law without the governor’s signature. Anticipating the bill’s passage, MFPE and the Montana School Board Association successfully amended SB 410 to require the Department of Revenue to administer the income tax credit pursuant to Montana’s constitution. The department wrote a rule as the bill demanded that prohibited tax credits for religious school tuitions. Religious school advocates sued. Game on.

Three years later the Montana Supreme Court declared all of SB 410 unconstitutional. Montana’s constitution means what it says. The plaintiffs’ appealed asserting a violation of the First Amendment of the U.S. Constitution.

Tomorrow, January 22, the U.S. Supreme Court will hear the plaintiffs’ appeal and maybe in June decide if Montana’s historic, cultural, and constitutional commitment to public education still stands.

If the court decides our constitution means what it says, maybe the hardline advocates of public school privatization will chill their noxious efforts to divert scarce taxpayer dollars away from our public schools to private and religious academies that discriminate against the common good, against our democracy.

If, however, the court decides Montana’s constitution violates the First Amendment, Montana’s historic, cultural, and constitutional goal of the people to provide a “basic system of free quality public elementary and secondary schools” will suffer one challenge after another to divert precious resources away from our public schools to schools of private, sectarian, special interest.

Espinoza v. Montana Department of Revenue is an existential threat to Montana’s commitment to democratic, quality public education and to states across our nation with a like commitment.

If you appreciate an independent voice holding Montana politicians accountable and informing voters, and you can throw a few dollars a month our way, we would certainly appreciate it.

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About the author


Eric Feaver is the first president of the Montana Federation of Public Employees (MFPE), a new union of former Montana public employee unions: Montana Education Association and Montana Federation of Teachers merged into MEA-MFT in 2000 and merged again in 2018 with the Montana Public Employees Association.

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