Tag: 9th circuit

VICTORY! Supreme Court Upholds Education Tax Credits

Ruling in ACSTO v. Winn today, the United States Supreme upheld Arizona’s k-12 scholarship tax credit program. Under this program, individuals receive a tax cut if they donate to a non-profit scholarship fund that gives out private school tuition aid.

Today’s decision, a reversal of an earlier ruling by the 9th Circuit, found that the respondents had no right to sue to stop the AZ program because they have not been harmed by it. And the reason they have not been harmed is central to why, for nearly 20 years, I have favored education tax credit programs over both traditional public schooling and voucher programs.

Respondents alleged that cutting a person’s taxes is equivalent to spending government money – and since taxpayers are receiving credits for donations to religious organizations, that was ostensibly equivalent to the government giving to those organizations. The Court answered, quite simply: “That is incorrect.” Elaborating, the Court ruled that:

tax credits and governmental expenditures do not both implicate individual taxpayers in sectarian activities. A dissenter whose tax dollars are “extracted and spent” knows that he has in some small measure been made to contribute to an establishment in violation of conscience…. [By contrast,] awarding some citizens a tax credit allows other citizens to retain control over their own funds in accordance with their own consciences.       [emphasis added]

That is precisely the argument I have been making for a very long time (last Friday, at a conference in Berkeley; last year in a blog post, here; a dozen years ago, in my book Market Education: The Unknown History).

With this ruling, the way forward for the school choice movement is clearer than it has ever been. Education tax credits – both the scholarship form operating in Arizona and the direct form operating in Illinois and Iowa – allow for universal access to the education marketplace without forcing any citizen to subsidize instruction that violates their convictions. No other school choice system offers that advantage and it is an advantage that is central to the values of our nation. As Thomas Jefferson wrote in the Virginia Act Establishing Religious Freedom:

To compel a man to furnish contributions of money for the propagation of opinions which he disbelieves… is sinful and tyrannical

Public schooling has long been a source of social conflict because it engenders just such compulsion. Education tax credits offer a way of securing universal public education without this blight. It is time to adopt them more widely.

How Do I Overturn Thee? Let Me Count the Ways

Tomorrow morning, the United States Supreme Court will hear one of the most important education cases in a generation: the appeal of a 9th Circuit ruling that would cripple or end Arizona’s k-12 scholarship tax credit program.

As you’d expect, commentators aren’t sure how the Supreme Court will ultimately rule: it may decide to overturn the 9th Circuit on the merits of the case, or it could overturn the 9th Circuit on the grounds that the plaintiffs never had standing to sue in the first place. Heck, there might even be people who think SCOTUS will uphold the lower court’s ruling… can’t actually find anyone who thinks that, but they could be out there… somewhere.

On the merits, the law and evidence are clear. Arizona’s program allows private individuals to donate to non-profit k-12 scholarship organizations and get a tax credit when they do–much as federal tax deductions are available for donations to non-profit charities. Since federal deductions for donations to religious organizations are Constitutional, the same applies to the credits in the AZ case. Respondents (those trying to kill the program) didn’t marshal a serious argument to the contrary. In fact, one of the cases they cite actually eviscerates their own argument, as I noted in Section II (b) of the Cato Institute Winn brief co-written by Ilya Shapiro and myself.

The rest of Respondents’ merits arguments are equally ineffectual, not only taking a form (relying on a moving statistical target) that has already been explicitly rejected by the Supreme Court in Zelman and elsewhere, but actually being wrong on the facts as well (see Section IV of the Cato brief linked above).

But while I’ve been exclusively focused on the merits of the case, it seems that the legal experts defending Arizona’s tax credit program have been arguing that the Respondents (originally, the Plaintiffs) never had a right to sue in the first place (“standing”), because they cannot show, in the context of Supreme Court precedents, how they have been harmed.

Both the SCOTUS blog’s reporter and independent experts seem to think the Court will overturn the 9th Circuit on the standing issue before even considering the merits, and I’m confident that the Court will overturn on the merits if it ever gets that far.

If the ruling comes down in either of those ways, modern education tax credit programs will retain their perfect record of never having been overturned by a court–a record not enjoyed by any other private school choice policy. The reason that is so very important is explained in the final section (V) of our Cato brief.