Last fall, the 9th Circuit Court of Appeals reinstated a lawsuit against Arizona's K-12 scholarship donation tax credit program. Under the program, citizens can donate to non-profit organizations that help families pay for private school tuition, and in return, the donors receive a dollar-for-dollar tax cut. The 9th Circuit, ruled that the program violates the Establishment Clause of the First Amendment, because many taxpayers choose to donate to religious scholarship-granting organizations whose scholarships are only usable at religious schools. This, in the Court's view, meant that the program unconstitutionally favored religious scholarship-seeking parents over secular ones.
Supporters of the program will soon be appealing this decision to the U.S. Supreme Court. They're very likely to win, for a variety of reasons. Foremost among them, the Establishment Clause forbids only governments from favoring religion, but imposes no similar limit on individual citizens. It is for this reason that charitable tax deductions can be claimed for donations to both religious and secular charities without running afoul of the First Amendment -- even if taxpayers overwhelmingly choose to donate to religious charities.
In rereading the original complaint, I noticed something interesting: even if the 9th Circuit's misconstrual of the Establishment Clause were correct, plaintiffs still wouldn't have a case. That's because the evidence they presented did not -- and still does not -- support their claim that secular parents have been at a comparative disadvantage in obtaining scholarships. To see why, read on....
The only evidence plaintiffs presented to show the claimed disadvantage of secular parents was that most of the scholarship funds have been distributed by religious organizations. That is not dispositive. To prove that secular parents were at a disadvantage in getting scholarships, plaintiffs would have to show that secular parents were being rejected by scholarship programs at a higher rate than religious parents, or that, at the very least, the share of religious-only scholarship funds was higher than the share of parents seeking religious schooling.
That, as it turns out, was not the case in the school year (1998-99) for which plaintiffs provided data, and it is not true today. In 1998-99, about 75.5 percent of private school children were in religious schools, but only 75 percent of (the very tiny amount of) scholarship funds distributed in that year were reserved for religious schooling. In 2007-08 (the most recent year for which data are available), 81.4 percent of private school students were in religious schools, but only 65 percent of the donated scholarship funds in 2008 were reserved for religious schooling.
There is thus no evidence that secular parents are any more likely to be turned away for a scholarship than are religious families, because the share of scholarship funds available for use at secular schools is now nearly twice as large as the share of children being enrolled in secular schools.
So even if plaintiffs and the 9th Circuit were right on Establishment Clause jurisprudence, which they certainly are not, the evidence still wouldn't support their case.
For all the relevant numbers I used to reach the above conclusion (sourced from the Arizona Dept. of Revenue and the National Center for Education Statistics) see this Excel spreadsheet file.