AG Brnovich Helps Lead 18 State Coalition Urging U.S. Supreme Court to Reverse Ruling Impacting Montana School Choice

PHOENIX – Attorney General Mark Brnovich announced today that Arizona joined 17 other states in filing a brief with the U.S. Supreme Court, urging the justices to overturn a 2018 Montana Supreme Court decision that required the state to exclude religious school options for parents participating in a state tax credit scholarship program.

Montana’s program, enacted by its legislature in 2015, provided a $150 tax credit to qualified taxpayers who donated to a private scholarship organization. The organization could then use those donations to provide tuition scholarships to any child to attend any qualified private school, regardless of religious affiliation. A number of states, including Arizona, have enacted similar school choice programs to the one the Montana Supreme Court struck down.

Arizona's Supreme Court has previously upheld the state's tax-credit scholarship program, reasoning that tax credits are not “public money” as that term is used in Arizona’s no-aid provision because “no money ever enters the state’s control as a result of this tax credit,” and “[n]othing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials.” In Montana, a dissenting Supreme Court opinion similarly argued that the funds eligible for tax credits are not a payment from any public funds.

"If this discriminatory ruling from the Montana Supreme Court is upheld, there will be far-reaching consequences that threaten school choice programs nationwide,” said Attorney General Mark Brnovich. “We cannot let down families across the country that rely on these programs to provide quality education for their children."

The Arizona Attorney General's Office, which helped write the brief along with the states of Oklahoma and Georgia, was joined by attorneys general from the states of Alabama, Alaska, Arkansas, Kansas, Louisiana, Missouri, Nebraska, Ohio, South Dakota, Tennessee, Texas, Utah, and West Virginia. Additionally, the Governors of Kentucky and Mississippi joined the brief supporting the Montana program.

In the brief, the coalition contends that if the ruling is not reversed, it opens the door for other state courts to interpret laws surrounding similar scholarship programs in the same discriminatory way.
Full copy of the brief.