A state scholarship programme in the U.S. state of Montana has been branded as unconstitutional as it would exclude students of religious schools as beneficiaries.

The state's Department of Revenue excluded religious schools in the scholarship programme, saying it was just following the Montana Constitution that prohibits direct or indirect funding to religious organisations.

However, the Pacific Legal Foundation (PLF) is opposing Montana's action, saying the exclusion of religious schools in the state's scholarship programme violates the latter's purpose and the Constitution's guarantees of religious freedom and equal protection of the law.

"These regulations are unfair and unjust because they limit the educational choices that the Legislature sought to offer Montana's families, particularly low-income households," said PLF lawyer Wen Fa.

"In fact, of the 139 schools on the state's list of private schools in Montana, more than two-thirds would be excluded from the scholarship programme because they have religious affiliations. It appears that 88 percent of students who are currently in non-public schools would be denied the opportunity to apply for the tax credit scholarship, simply because of the religious affiliation of their schools," Fa said.

PLF is representing the Association of Christian Schools International, an organisation that includes 3,000 religious schools in the U.S. and 11 in Montana.

The scholarship programme that would begin next year would ask individuals and businesses to donate up to $150 to scholarships in private schools or innovative educational programmes in public schools. The donation can be used as a tax credit.

It was enacted by the Montana Legislature and will begin on Jan. 1 next year. The scholarship organisations will provide tuition scholarships to students in a public or private school of their choice.

Under it, scholarship organisations can give the funds to any "qualified education provider."

But the revenue department is proposing to exclude schools "owned or controlled in whole or in part by any church, religious sect, or denomination," or that are accredited by a "faith-based organisation."

"Unelected bureaucrats cannot be allowed to undermine a promising school choice programme, especially with restrictions that punish people based on their religion," said Fa. "Either the agency withdraws these unseemly and unconstitutional proposals, or it will need to answer for them in court."

He added that "by excluding schools and students from the scholarship programme based solely on the schools' religious affiliations, state bureaucrats would be violating the Constitution's guarantees of religious liberty and equal protection of laws for all people regardless of their faith or their philosophical viewpoints."

Fa said the exclusion would invite a lawsuit under the First Amendment and Equal Protection Clause.