AG Fox warned Department of Revenue about tax credit rule’s unconstitutionality in 2015

A ruling from the U.S. Supreme Court today says that Montana’s 2015 school tax credit legislation cannot exclude private religious schools.

In 2015, Montana’s legislature and governor enacted a bill providing a tax credit for donations to private schools. After the Department of Revenue proposed an administrative rule excluding religious schools, Attorney General Tim Fox’s office warned the department that its rule likely violated the U.S. Constitution and would be indefensible in court.

“After thorough analysis of the proposed rule, I urged the Bullock Administration not to adopt it for the very reason the U.S. Supreme Court issued its ruling,” Fox said. “The Court echoed and even pointed out our analysis showing the rule to be discriminatory and unconstitutional.”

Chief Justice John Roberts referred to Attorney General Fox’s warning on page three of the majority opinion:

Shortly after the scholarship program was created, the Montana Department of Revenue promulgated “Rule 1,” over the objection of the Montana Attorney General. That administrative rule prohibited families from using scholarships at religious schools. Mont. Admin. Rule §42.4.802(1)(a) (2015). It did so by changing the definition of “qualified education provider” to exclude any school “owned or controlled in whole or in part by any church, religious sect, or denomination.” Ibid. The Department explained that the Rule was needed to reconcile the scholarship program with the no-aid provision of the Montana Constitution.

The Montana Attorney General disagreed. In a letter to the Department, he advised that the Montana Constitution did not require excluding religious schools from the program, and if it did, it would “very likely” violate the United States Constitution by discriminating against the schools and their students. See Complaint in No. DV–15–1152A (Dist. Ct. Flathead Cty.), Exh. 3, pp. 2, 5–6.