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April 5, 2011 Print

Dig Deeper: Why This Week’s Supreme Court Ruling Matters to Families

by Candi Cushman

On Monday (April 4), the U.S. Supreme Court threw out an ACLU-backed lawsuit that had attempted to dismantle an important tax-credit, school choice program.

Why should you care about this ruling ? For three very important reasons:

1) It sets a powerful precedent for protecting nationwide school choice programs that strengthen families’ freedoms to choose the best educational options for their children.

2) It makes it more difficult for groups like the ACLU to bully states into dismantling successful, widely supported school choice programs.

3) It affirms a key concept underlying the school choice movement—that private donations and the personal choices of families are voluntarily and are not the same thing as government-forced religion.

Let’s take a look at each one of these points:

It sets a powerful precedent for protecting nationwide school choice programs that strengthen families’ freedoms to choose the best educational options for their children.

The most important idea behind the school choice movement is that taxpayer money should follow the children, and benefit them, instead of a bureaucracy. This idea is sweeping the nation.

And one of the most popular forms of that idea are tax credit scholarship programs, which have increased in recent years because they provide more of a buffer against church-state lawsuits—essentially, by removing the government from the donation and scholarship granting process. To date, at least eight states have implemented varying forms of these programs—including Arizona, Florida, Georgia, Illinois, Indiana, Iowa and Minnesota.

School choice programs help level the playing field for families of all incomes—by ensuring more parents won’t have to send their kids to failing or unsafe schools simply because they don’t have the extra income or happen to live in a certain zip code.

In Arizona, the program works this way: State residents can receive a 100 percent tax credit for donating up to $500 (married couples, up to $1,000) to scholarship-granting organizations. The organizations then, in turn, award scholarships to students from low- to moderate-income families to attend a private school. Anyone in the state can set up a scholarship-granting organization. And many faith-based groups have chosen to do so. Last year alone, some 27,000 children benefited from the program.

Predictably, that drew the ire of the ACLU and its allies, who seem dedicated to squelching any form of faith-based participation in the public square. They filed a lawsuit against the program, making the usual claim that it violates the Establishment Clause.

But the good news is, on Monday, the Supreme Court dismissed the lawsuit and left the Arizona tax credit program in place—thus bolstering similar programs nationwide and strengthening the freedom of parents to make the best educational choices for their children.

It sets a precedent that makes it more difficult for groups like the ACLU to bully states into dismantling successful, popular school choice programs.

In Arizona, for instance, the ACLU has worked hand in hand with public school bureaucrats, filing lawsuit after lawsuit, and eventually winning court decisions against scholarship programs for children with disabilities or who live in foster care. Then it went after the state’s tax credit scholarship program. The first volley against the program failed in both a district court and state appeals court. But then the ACLU found a friend in the 9th Circuit.

As it has done many times before, this week the U.S. Supreme Court reversed the 9th Circuit, finding that the ACLU’s clients lacked standing to file the lawsuit. “The decision creates a national precedent that will prevent similar legal attacks in the future,” said the Alliance Defense Fund press release.

It affirms a key concept underlying most school choice programs—that private donations and the personal choices of families are voluntary and are not the same thing as government-forced religion.

The Arizona tax credit scholarship process involves a series of private decisions—starting with an individual’s decision to donate to a scholarship organization of their choice—and ending with a parent’s decision to apply for a scholarship that their child can use to attend a private school of their choice. Many families in the Arizona program chose to attend faith-based schools. As Arizona’s assistant attorney general argued, “any aid that reaches religious schools does so only after at least four levels of private decision-making.” Therefore, the decision to donate to scholarship programs is an individual-directed one, not a government-directed one. Likewise, the decision to send a child to a faith-based school is a parent-directed one, not a government-directed one.

The freedom to make private decisions with one’s own money, is a concept that Justice Anthony Kennedy backed when he wrote the Court’s majority opinion on Monday, saying that “contributions result from the decisions of private taxpayers regarding their own funds. … the tax credit system is implemented by private action and with no state intervention. Objecting taxpayers know that their fellow citizens, not the State, decide to contribute and in fact make the contribution. ….Like contributions that lead to charitable tax deductions, contributions yielding STO [scholarship tuition organizations] tax credits are not owed to the State and, in fact, pass directly from taxpayers to private organizations.”

In short, the Court’s ruling directly counteracted a frightening argument used by opponents of school choice programs— that all the hard-earned money you earn belongs to the government—except for what it happens to give you permission to use.

During oral arguments on the case, Justice Kennedy made this analogy to illustrate that sort of erroneous thinking: “Let me ask you. If — if you reach a certain age, you can get a — a card and go to certain restaurants and they give you 10 percent credit. I think it would be rather offensive for the cashier to say, “and be careful how you spend my money…. But that’s the whole point of your case.” (You can listen to audio of this exchange here.)

In Monday’s opinion, the Court reiterated this point, saying that the position of those filing the lawsuit “assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands. That premise finds no basis in standing jurisprudence. Private bank accounts cannot be equated with the Arizona State Treasury.”

Thus, the Court’s support of individuals’ ability to voluntary contribute to scholarship organizations for school choice programs—even if those donations are ultimately used by children to make a personal choice to attend a religious school— is a huge step forward for the nationwide school choice reform movement.


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