The Supreme Court today granted review in a case the Alliance Defense Fund has been litigating on whether Arizona’s school tuition tax credit program violates the Establishment Clause.  Actually, the Supreme Court consolidated two cases, Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn.   You can find the court documents for the appeal here

            Under the Arizona plan, state taxpayers can get a $500 individual tax credit ($1000 for a married couple) when they donate money to any one of a myriad of private tuition organizations that donate scholarship money to at least two private K-12 schools.   The ACLU objects because most of the donations go to religious private schools, and claims that the program violates the Establishment Clause.

      The Supreme Court has upheld similar school choice plans against Establishment Clause challenges.  For example, the Supreme Court upheld Minnesota’s tax deduction plan for public school expenses in Mueller v. Allen, and upheld Cleveland’s school voucher system in Zelman v.  Simmons-HarrisBoth of those cases and others stated that if  government money goes to the religious school because of the voluntary choice of the parents without any governmental coercion, the program does not violate the Establishment Clause. 

      ADF is representing one of the private tuition organizations in the first case the Supreme Court granted review.  ADF is claiming that the taxpayers the ACLU brought to court lack standing to pursue the case because they have suffered no harm from the program - no tax money goes to religious schools under this program.  This is a tax credit to the taxpayer, not a government grant of funds to a religious school.  ADF is arguing that it is too speculative to argue, as the ACLU does, that public schools would get more money if this tax credit system were struck down.  ADF will also be arguing, along with the State of Arizona in the second case, that the program is constitutional under the Establishment Clause.

       I lived in Arizona for 5 1/2 years before our recent move back to the D.C. area.  From my experience, Arizona has set up one of the most impressive school choice systems in the nation.   The Arizona school choice system has many more aspects than just the private school tuition tax credits, enhancing the ability of parents to tailor-make the education each of their children receives.  For example, students can attend any public school in the state.  Charter schools abound, with many of them emphasizing special subjects, such as arts or science or basic education.  Home schooling with its intensive focus on individual students flourishes due to minimal state regulation.  Home school students can send their children to public schools for extracurricular classes (e.g., band, sports teams, etc.).  On top of that, Arizona taxpayers can donate to these charitable groups that then award tuition scholarships to students in private schools. 

   It is interesting how this tax credit program has changed parents’ thinking and behavior in terms of their childrens’ education.  When living there, I saw that when parents in Arizona examined the numerous educational options, they became more active in directing their childrens’ education.  Rather than passively putting their children on orange buses for the public schools at age 5, the Arizona system causes parents to get more involved in their childrens’ lives.  Arizona’s important experiment in school choice is an example for the whole nation, and should not be shot down by some fanatical Scrooges with their obsessive pursuit to impose their narrow and extreme views of the Establishment Clause on everyone else.

   The briefing will unfold over the next few months, with oral arguments in the case probably during the first two weeks of November.  This is going to be an important case, and one where the Supreme Court should reinforce its prior precedents supporting school choice.