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PFPS Urges U.S. Supreme Court to Affirm Montana Ruling Invalidating Private School Vouchers

Public Funds Public Schools (PFPS) has filed an amicus curiae (friend of the court) brief in Espinoza v. Montana Department of Revenue urging the U.S. Supreme Court to affirm the decision of Montana’s highest court striking down private school vouchers funded through tax credits. 

Public Funds Public Schools is a national campaign to ensure that public funds for education are used to maintain and support public schools. PFPS is a collaboration of the Southern Poverty Law Center (SPLC), Education Law Center (ELC), and Munger, Tolles & Olson LLP.

In 2018, the Montana Supreme Court invalidated a voucher program that provided a dollar-for-dollar tax credit for donations to organizations that distributed so-called “scholarship” vouchers to pay tuition at private schools. The Montana Supreme Court held that the tax credit program violated the no-aid provision in the state constitution, which prohibits the use of public funds to aid private religious schools. 

The U.S. Supreme Court accepted the case for review. Several pro-voucher groups are arguing that Montana’s no-aid provision was motivated by anti-Catholic bigotry and violates the religion and equal protection clauses of the U.S. Constitution. Their argument focuses almost entirely on materials from the 1800s. But that is not the appropriate inquiry. The current no-aid provision was the product of Montana’s 1972 Constitutional Convention.

PFPS’s amicus brief provides important historical context from the 1970s demonstrating the central purpose of the no-aid provision: ensuring that public funds are used solely to support Montana’s public schools. As the PFPS brief explains, the no-aid provision is an integral part of the state constitution’s guarantee of a system of free, quality public education. The debates on this provision and contemporaneous written materials demonstrate that the constitutional prohibition on state funding of religious schools was motivated by a desire to maintain Montana’s quality public schools, not by anti-religious bias.   

“PFPS’s amicus brief offers the Supreme Court a detailed review of the 1972 delegate debates and ratification materials, which are critical to interpreting Montana’s no-aid provision,” said Tamerlin Godley, litigation partner with Munger, Tolles & Olson. “These key sources clearly demonstrate that the purpose and understanding of the no-aid provision was to protect Montana’s limited state funds and ensure they were used to support only public education.”  

Additionally, the PFPS amicus brief summarizes peer-reviewed studies consistently showing that voucher programs negatively affect student achievement. The brief also explains that the research cited by pro-voucher groups, such as EdChoice, Center for Education Reform, and Alliance for Choice in Education, in numerous amicus briefs suffers from basic and critical flaws. These include the assertion of broad conclusions based on small, individualized studies and equating correlation with causation by failing to take into account the ways individuals or families who participate in voucher programs may differ from those who do not.  

"PFPS filed this brief to inform the Court that the claims of amici promoting voucher programs – that vouchers dramatically improve academic achievement – are simply not supported by social science research,” said Jessica Levin, ELC Senior Attorney and PFPS Director. “It is crucial for the Court and the public to know that research consistently demonstrates private school vouchers have a detrimental impact on academic outcomes." 

“The state law in Montana is clear: public funds cannot be used to support private religious schools,” said Bacardi Jackson, SPLC Managing Attorney. “We urge the U.S. Supreme Court to uphold the ruling by the Montana Supreme Court which affirms this law and guards against unlawful uses of public funds.”

For more information on voucher litigation and additional PFPS amicus briefs, visit the Litigation page of the PFPS website.