U.S. Supreme Court to Hear School Choice Cases

Published July 28, 2010

When the United States Supreme Court reconvenes on the first Monday in October, two important school choice cases challenging Arizona’s tuition tax credit will appear on the justices’ docket.

The court will hear arguments in Arizona Christian School Tuition Organization vs. Winn and Garriott vs. Winn. Both cases appeal a Ninth U.S. Circuit Court of Appeals decision from last year. A three-judge panel found the tax credit unconstitutionally advances religion because most taxpayers donated scholarship funds to religious schools.

The Ninth Circuit’s ruling jeopardizes one of the nation’s longest-running scholarship tax credit programs, serving more than 27,000 children.

A Supreme Court ruling in favor of the Arizona program would have national implications, clearing the way for other states to adopt tax credit scholarship programs. Currently just 10 states—Arizona, Florida, Georgia, Indiana, Illinois, Iowa, Louisiana, Minnesota, Pennsylvania, and Rhode Island—offer school tax credit or tax deduction programs.

Freedom of Choice Cited

At issue before the high court is whether income tax credits for a voluntary donation to a religious or nonreligious charity—known as a school tuition organization—represent illegal government support of religion.

“The answer to that question is, of course, no,” said Tim Keller, executive director of the Institute for Justice’s Arizona office and lead counsel in one of the cases.

Keller says Arizona’s scholarship tax credit program does not mix religion with government policy.

“Every decision under the program is made by private actors,” Keller explained. “Private individuals establish private charities. Taxpayers make the decision to donate to a charity and then to which charity they would like to donate.  Parents choose the private school that best suits their child’s unique educational needs and apply to the charity of their choice for a scholarship.”
Keller argues Arizona structured its tax credit program to be completely neutral with respect to religion.

“Neither taxpayers nor parents have any financial incentive to donate to a religiously affiliated scholarship organization over a nonreligious scholarship organization or to select religious over nonreligious schools,” Keller said.

Ruling Conflicts with Precedents

Keller said the Ninth Circuit ruling clashed with several precedents.

“The Ninth Circuit’s ruling is in direct conflict with no less than four controlling Supreme Court precedents holding that school choice programs that are religiously neutral and based on genuine private choice pass constitutional muster,” he said. Keller cites Mueller vs. Allen (1983), Witters vs. Washington Dept. Services for the Blind (1986), Zobrest vs. Catalina Foothills School District (1993), and Zelman vs. Simmons Harris (2002).

The circuit court decision may also conflict with a 1999 Arizona Supreme Court decision that rebuffed a similar challenge to the tax scholarship program, Keller says.

“If Arizona’s tax credit program had been halted, tens of thousands of kids could have been forced to leave the schools where they are thriving and been forced into an already overcrowded and overburdened public school system,” added Keller.

Neutrality Seen as Key

Ilya Shapiro, a legal analyst with the Cato Institute in Washington, DC, said the Supreme Court agreed to hear the Arizona cases because the Ninth Circuit clearly departed with the 2002 Zelman decision, which ruled Cleveland’s school choice program did not violate the establishment clause of the First Amendment because vouchers went to parents, not directly to schools.

“It is a blatant violation of Supreme Court precedent, and [the justices] saw that,” Shapiro said.

“The court has stated clearly that if a policy is neutral in respect to religion, then the incidental affect of individuals’ choices where they use those dollars is irrelevant to the establishment clause analysis,” Shapiro explained. “So this case will ultimately reinforce the idea that as long as government doesn’t affirmatively affect [the individual’s decision] with the motivation to enhance religion, then it will be deemed constitutional.”
Would Set Important Precedent

Keller said he expects the court to reaffirm that “programs empowering parents to choose the best school for their children, regardless of whether that school is a public or a private or religious school, are perfectly consistent with the First Amendment.”

The Supreme Court granted writs of certiorari for Arizona Christian School Tuition Organization vs. Winn and Garriott vs. Winn in May. Oral arguments have not been scheduled.

Sarah McIntosh ([email protected]) teaches constitutional law and American politics at Wichita State University in Kansas