- Associated Press - Friday, May 26, 2017

HELENA, Mont. (AP) - Montana’s School Choice program can grant scholarships to students who attend faith-based schools, a state judge has ruled.

District Judge Heidi Ulbricht ruled Tuesday that the state Revenue Department incorrectly excluded such students from the program, which is funded by donations that can be offset by up to $150 in non-refundable tax credits. The 2015 bill that created the program limited its annual tax credits to $3 million.

“What a wonderful victory this is for all the families in Montana who have chosen private education for their children,” said Kendra Espinoza, one of three people who challenged the Revenue Department’s decision. “We are thrilled and encouraged. This is going to make such a difference for all the parents who will now have the opportunity to send, or continue to send, their children to the school of their choice.”

In writing the administrative rules for the program, the Revenue Department said an institution controlled by any church or religious sect could not be considered a “qualified education provider.” The agency argued the state constitution does not allow appropriations to faith-based schools.

A poll of lawmakers found a majority said it was not their legislative intent to exclude faith-based schools from the program. Still, the agency enacted the rule in December 2015.

Espinoza, Jeri Ellen Anderson and Jaime Schaefer, whose children attend Stillwater Christian School in Kalispell, challenged the rule with the help of the Institute for Justice, a libertarian public interest law firm.

In March 2015, District Judge David Ortley granted a preliminary injunction to prevent the Revenue Department from implementing the rule. The plaintiffs then moved for summary judgment.

Ulbright found that the program is funded through tax credits, not appropriations, and the constitution does not address the use of tax credits. “Non-refundable tax credits simply do not involve the expenditure of money that the state has in its treasury,” Ulbright wrote.

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