(Guest Post by Jason Bedrick)
The constitutionality of tax-credit scholarships is in the news again, as Montana’s state supreme court will soon consider the issue. What makes Montana’s case unique is that the roles of the petitioners and respondents is reversed. Usually it’s school choice opponents who sue a state over its choice program. In Montana, the Department of Revenue decided — against the wishes of the legislature — to block tax-credit scholarship recipients from using them at religious schools based on its own squirrelly interpretation of the state constitution. That drew the ire of choice proponents, including the heroes at the Institute for Justice, who sued.
A district court judge ruled in favor of the Institute for Justice, but the state has appealed the decision to the Montana Supreme Court.
Based on the track record, tax-credit scholarships are very likely to win. But Kevin Welner, a long-time critic of tax-credit scholarships (he calls them “neovouchers,” but no one serious has followed his lead), disagrees:
“If you’re asking if this is an area of unsettled law, the answer is yes,” Welner said. “Generally, the differences that you see are reflective of the blue-red differences we have in this country.”
Is that so? Let’s see what the scorecard shows. First, the victories:
Tax-Credit Scholarship Legal Victories
- Supreme Court of the United States
- New Hampshire
It should be noted that the unanimous decision in Georgia was written by a justice appointed by a Democrat. In Florida and Illinois (not a red state, last I checked), the state supreme courts refused to hear appeals of lower-court victories. Also, before anyone objects “some of these were decided on standing, not the merits!” — there’s very little difference. First, all the decisions but New Hampshire’s explicitly state that tax credits do not constitute public expenditures in their decisions ruling against the plaintiffs’ standing, which is essentially ruling on the merits. Even New Hampshire’s state supreme court (which had a liberal majority) unanimously ruled against standing because the plaintiffs could not demonstrate any harm. Second, there’s functionally no difference between “constitutional” and “may or may not be constitutional on the merits but no one has standing to sue so the program may legally continue.”
Anyway, let’s now look at the losing side of the ledger to see how truly “unsettled” this area of law is:
Tax-Credit Scholarship Legal Defeats
This looks less like a “red state vs. blue state” divide than a “real state vs. imaginary state” divide.
My question for Welner is: how many states have to follow the U.S. Supreme Court’s lead before he believes the law is “settled”?
Also, a closing word of advice: