Do State Courts Have Discretion to Invalidate Tuition Tax Credit/Scholarship Programs?

• In Event: Law, Education, and Religion: The Religious Liberties of Students, Teachers, K–12 Schools, and Universities

Abstract

This paper focuses on Espinoza v. Montana Department of Revenue (2018), in which the Montana Supreme Court became the first state high court to strike down a tax credit/scholarship program under the state constitution's prohibition on using public funds to aid religious institutions. Espinoza is analyzed in light of prior U.S. Supreme Court and state high court rulings pertaining to school choice initiatives that allow public money to flow to religious schools. The U.S. Supreme Court recently agreed to review this case, and the paper explores various options the Court could and likely will pursue in addressing the Montana decision. Legal and educational implications of the various options are also addressed.

Author

• Martha M. McCarthy, Loyola Marymount University