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. 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.
Cato, in a brief joined by four education reform groups, urges 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.
