Are Tax Credits for Private Schools Against the Constitution?

Aaron Flint posted on December 31, 2014 13:20 :: 1038 Views

With support for school choice building all across the State of Montana, union leaders and lobbyists for the state’s public school system are attempting to claim that allowing a tax credit for someone to send their kid to the school of their choice would violate the Constitution.  (Well, at least when they’re not openly bashing Christians and Christian schools that is)

I’ve reached out to both Eric Feaver with the MEA-MFT, who represents the unions, and Jeff Laszloffy with the Montana Family Foundation to see if they would be interested in discussing this issue on our statewide radio talk show.  Laszloffy says he is up for it.  So far, no word back from Feaver via e-mail nor Twitter.   

Now, back to the question of Constitutionality. 

Look, I get it that the Montana Constitution says public funds cannot be appropriated to private schools.  But that’s a whole different ballgame than simply allowing people to keep more of their money, as I previously tweeted. (Which is the real problem here, because those on the Left think that your money is really their money)

In response to the question of Constitutionality, here’s what Jeff Laszloffy had to say via e-mail: 

Actually this concept has been adjudicated all the way to the U.S. Supreme Court and found to be perfectly legal.  The key point according to the Court was the fact that tax credits are private monies because they have never been transferred to the state (paid).  Since are still private monies, they are not considered a state appropriation to a private entity. 

Laszloffy then shared this Washington Post story from 2011:  Supreme Court tosses private-school tax-credit challenge

Challengers said the program was unconstitutional because it transferred funds that otherwise would have gone to the state treasury.

Kennedy made a distinction between a government expenditure and a tax credit.

“When Arizona taxpayers choose to contribute to STOs they spend their own money, not money the state has collected from respondents or from other taxpayers,” Kennedy wrote. He added that “objecting taxpayers know that their fellow citizens, not the state, decide to contribute and in fact make the contribution.”

Laszloffy added:

Ironically, this case was decided (2011) just weeks after this same bill was killed in the Montana Legislature because Senators bought Eric Feaver’s argument that this is a transfer of state dollars to private religious schools.

Last session, this same billed was passed by both chambers and was subsequently vetoed by Gov. Bullock.  The bill was sponsored by Senator Dave Lewis.  Not exactly a political lightweight.

The bottom line: Roughly 2000 kids drop out of Montana schools each year.  If someone wants to use their own private money to help provide educational options for a child in danger of dropping out, why would Eric Feaver and the Education establishment oppose that?

State Sen. Kris Hansen (R-Havre) also weighed in:

The issue of a constitutional prohibition on tax credit scholarships or education savings accounts or any other school choice program is a red herring being touted by the anti-freedom crowd.   

Several state supreme courts and the US Supreme Court have already declared that Blaine amendments are not applicable to either program.   The reasoning is that the money is not going to a Christian school.  The money is going to a parent.  The parent has full freedom to choose a private school (Christian or not), a tutor, an online education, or whatever schooling option they choose (except homeschool – they can’t pay themselves).   The courts have held this is NOT direct or indirect funding of private schools.  

Additionally, the so-called Blaine amendments have an insidious history.  They come straight out of historical anti-Catholic bias, and are probably in themselves unconstitutional.   Eventually we will get a legal challenge to a Blaine amendment such as Montana’s and I expect it will fall.   


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