Tag: Zelman

Taxpayer Choice + Parental Choice = Good, Constitutional Education Reform

Arizona grants income tax credits for contributions made to school tuition organizations (“STOs”).  STOs must use these donations for scholarships that allow students to attend private schools.  This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend.  Still, several taxpayers filed a lawsuit challenging the program as creating a state establishment of religion.

Although the Ninth Circuit acknowledged that increasing educational opportunities is a valid secular purpose for a legislative act, it found that the tax credit program nonetheless violates the Establishment Clause because many of the STOs—as it happens, a decreasing majority—provide scholarships for students to attend parochial schools.  Earlier this year, Cato filed a brief supporting the request for Supreme Court review filed by the various parties defending the program.  The Court granted cert.

Now Cato (led by Andrew Coulson and myself) has filed another brief, joined by four education reform groups, urging the Supreme Court to overturn the Ninth Circuit’s decision because it was based on faulty reasoning:  It equated the private and voluntary choices of individuals who donate to religious STOs with state sponsorship of religion.  The lower court also made the dubious assertion that Arizona parents feel pressured to accept scholarships to religious schools, in spite of the fact that the share of STO scholarships available for use at secular schools is almost twice as large as the share of families actually choosing secular schools. Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster.

We urge the Court to reaffirm its longstanding jurisprudence—especially the 2002 school-choice case, Zelman v. Simmons-Harris—whereby instances of “genuine and independent choice” are insulated from Establishment Clause challenge. Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it.  More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled.

The case of Arizona Christian School Tuition Organization v. Winn will be heard by the Court this fall, probably in November.

Cato’s Amicus Brief Helps School Choice Get to the Court; Congrats, IJ!

As Andrew Coulson noted, the Supreme Court has agreed to hear Arizona Christian School Tuition Organization v. Winn, the education tax credit case whose cert petition Cato supported with an amicus brief.  So we didn’t get the summary reversal we optimistically hoped for but I’m confident that this means only that the Ninth Circuit’s reversal will have to wait 8-10 months.  Congratulations to Tim Keller, Dick Komer, and our friends at the Institute for Justice, which successfully litigated the Zelman v. Simmons-Harris case that is the pro-school choice precedent the Ninth Circuit so blithely ignored here. 

I should note that ours was one of only three amicus briefs filed in this case, and studies have shown that the first few such briefs increase chances of Supreme Court review significantly (having more than about three seems to be redundant).  Which isn’t to say that we take credit for the successful strategy that IJ and its co-counsel are pursuing – indeed, as is good appellate practice, we coordinated with IJ so our brief would offer the Court some arguments and nuance for which the parties’ briefs didn’t have space – but it is gratifying to see the Court impliedly see the validity of our position.  We will of course be filing again at the merits stage, which briefs won’t be due for a few months.  The Court will likely hear the case in late fall, so we should expect a final decision in winter 2011.

For all the filings in the case, see its SCOTUSwiki page or its Supreme Court docket page.  I blogged about the case here and here and George Will wrote about it last week.  Andrew also blogged the original Ninth Circuit decision here.

Taxpayer Choice + Parental Choice = Education Reform That’s Constitutional

Arizona grants income tax credits for contributions made to school tuition organizations (“STO”).  These STOs must these donations for scholarships that allow students to attend private schools.  This statutory scheme broadens the educational opportunities for thousands of students by enabling them to attend schools they would otherwise lack the means to attend. 

The Ninth Circuit held that the tax credit program violated the Establishment Clause because many of the STOs – as it happens, a decreasing majority – provide scholarships for students to attend parochial schools.  Counsel for the defendants, including the Institute for Justice, asked the Supreme Court to review the case – and indeed to summarily reverse the Ninth Circuit, based in part on a 2002 case (Zelman v. Simmons-Harris) rejecting a similar challenge to a school voucher program.  Cato filed a brief, joined by the Foundation for Educational Choice and the American Federation for Children, supporting this request. 

Our brief argues that the funds received by STOs are the product of individual taxpayers’ “genuine and independent choice” – the touchstone by which the Court judges the religious neutrality of statutes allowing for taxpayer money to fund religious education.  Moreover, the tax credit scheme is indistinguishable from similar charitable tax deduction programs that the Court has previously held to pass constitutional muster.  While the Ninth Circuit reasoned that Arizona parents feel pressured to send their kids to parochial schools due to limited scholarships available for secular schools, it failed to consider that the share of STO money available to secular schools was nearly twice as large as the share of families choosing to send their children to secular schools. 

Far from being an impediment to parental freedom, the autonomy Arizona grants to taxpayers and STOs is ultimately essential to it.  More generally, should the lower court’s opinion be allowed to stand, the progress made to broaden the educational opportunities of students across the country will be stifled. 

The name of the case is Arizona Christian School Tuition Organization v. Winn.  The Court will likely decide before it breaks for the summer whether to take it up – and, indeed, whether to summarily reverse the Ninth Circuit.