Arizona Joins Coalition Urging Supreme Court To Reverse School Choice Ruling

u.s. supreme court
U.S. Supreme Court [Photo courtesy U.S. Supreme Court]

PHOENIX – Arizona has 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.

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.

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.


  1. So a proper SCOTUS decision would be to deny taking the case based on states rights. That would be the Constitutional thing to do. It would provide clarity on the issue and provide grounds to start challenging the federal dept of education on a whole host of issues.

    Given the tendency of the gang of nine to make social policy however, it probably won’t play out that way.

  2. As much an advocate of ‘school choice’ as I am (I do disagree with the Montana state ruling)this is none of the business of federal courts. So many tout themselves as advocates of the Constitution, yet as soon as an opportunity arises to push their agenda, that goes out the window.

    • A State court on a state question. Notwithstanding there should be no tax dollars (even in the Arizona money laundering method) for religious schools, the feds should stay out of Montana. Normally conservatives would support this concept. But judicial activism in the support of conservative causes is no vice.

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