Blaine Amendments at Center of Georgia Case Challenging Tax-Credit Scholarships

Published February 6, 2017

Georgia launched the Qualified Education Expense Tax Credit program (QEETC), a tax-credit scholarship program, in 2008. Individual and corporate donors receive dollar-for-dollar tax credits in exchange for donations made to QEETC. The scholarships help “prior public school students access schools that best fit their needs.”

EdChoice reports 93 percent of students statewide are eligible for the program, which awarded 12,917 scholarships in 2015.

Ongoing Lawsuit

In April 2014, four Georgia taxpayers, represented by the Southern Education Foundation (SEF), filed a lawsuit alleging the tax-credit scholarship program violates the state constitution’s Blaine amendment, which prohibits use of public money to fund religious institutions.

In February 2016, Fulton County Superior Court Judge Kimberly M. Esmond Adams ruled, “Courts that have already considered whether a tax credit is an expenditure of public revenue have answered this question in the negative. … Plaintiffs have not presented any arguments for why this Court should not follow this persuasive authority.”

The plaintiffs appealed the ruling, and the Georgia Supreme Court began hearing arguments in Gaddy v. Department of Revenue on January 23, 2017.

‘Did Not Have Standing’

Leslie Hiner, vice president of programs at EdChoice, says the plaintiffs’ initial case was dismissed for two reasons.

“The trial court held that plaintiffs did not have standing to challenge the tax-credit program, and even if they had standing, their constitutional arguments failed because contributions to tax-credit scholarship organizations for which individuals receive tax credits are not government funds,” Hiner said.

Hiner says SEF has a history of challenging the validity of school choice programs.

“About a year prior to filing this lawsuit, [SEF] took a position against private religious schools based on what the SEF determined to be ‘anti-gay’ policies of religious schools,” Hiner said. “This discriminatory view of religious schools, which runs counter to our constitutional protections supporting freedom of religion, is just one of their objections.

“The SEF waited until 13,000 children were successfully using scholarships to access a better education,” Hiner said. “This strong effort to take scholarships away from children … many of whom were failing to thrive in their prior schools but who are now enjoying the benefits of quality education, is despicable.”

Program Is ‘Wildly Popular’

Ben Scafidi, director of the Education Economics Center at Kennesaw State University and a fellow at the Georgia Public Policy Foundation, says families are extremely satisfied with Georgia’s tax-credit scholarship program.

“While Georgia’s tax-credit scholarship is small, it is wildly popular,” Scafidi said. “Donations far exceed the $58 million statewide cap on the first day of the year. Scholarship recipients love the program as well. And the private schools say they wish they could help even more kids get a better education.”   

Scafidi coauthored a study on tax-credit scholarship recipients in Georgia in November 2013, finding parents were nearly universally satisfied with the program. 

“We surveyed the families of scholarship students,” Scafidi said. “These parents almost unanimously thought their children were better off in their new schools as compared to their former public schools. While these parents had a wide variety of reasons as to why they thought their children were in better situations, two of the most cited reasons were the parents believed their children were in safer and more-disciplined environments and the parents believed their children had a better chance of going to and succeeding in college.”

Plaintiffs ‘Unlikely to Prevail’

Hiner says the fact Indiana, Nevada, and Oklahoma have overcome Blaine amendment claims and maintained their tax-credit scholarship programs bodes well for Georgia.

“Plaintiffs are unlikely to prevail on their Blaine amendment argument, and it is unlikely that Georgia’s tax-credit scholarships will be ruled unconstitutional,” Hiner said. “Three recent state supreme court cases involving Blaine amendments and one recent U.S. Supreme Court case involving standing to sue tax-credit scholarship programs, provide justification for my view.

“Conclusive court rulings emphasize that at the point when parents receive their child’s share of state funding for education, how and where parents use those funds to provide K–12 education for their child is a private choice, uniquely the right of the parent to make that decision,” Hiner said. “Parents may choose a religious or nonreligious education provider. That choice is owned by the parent, not the state. Because the state is not involved in that decision, there can be no violation of the Blaine amendment.”

Reversal Would Be ‘Devastating’

Lisa Kelly, president of Georgia GOAL Scholarship Program, Inc., which awards approximately one-third of the tax-credit scholarships in the state, says ending the program would destroy opportunities for thousands of children.

“The success of the Georgia GOAL Scholarship Program has significantly impacted the lives of thousands of Georgia families and has resulted in a sharp increase in public interest in and support for school choice,” Kelly said. “If the court strikes down this popular tax-credit program on constitutional grounds, thousands of families will be forced to return their children to public schools that the State of Georgia annually identifies as ‘failing.’ This would be a devastating outcome.”

Ashley Bateman ([email protected]) writes from Alexandria, Virginia.


Benjamin Scafidi and Jim Kelly, “More Than Scores: An Analysis of Why and How Parents Choose Private Schools,”, November 13, 2013: