Opponents of school choice in Arizona are proving that they will go to any length to stop parents of modest means from securing a quality education for their children at the school of their choice.
On September 19, 2006, three such opponents of educational freedom filed a lawsuit against the state’s scholarship tax credit program for low- and middle-income families. The ACLU of Arizona, the Arizona School Boards Association (ASBA), and the Arizona Center for Law in the Public Interest (ACLPI) filed the lawsuit with the backing of leaders in Arizona’s education establishment.
This is the third lawsuit against scholarship tax credits in Arizona, and like the previous two, this one is doomed to fail. In 1999, the Arizona Supreme Court in Kotterman v. Killian upheld a nearly identical program providing tax credits for personal donations to scholarship organizations from a nearly identical legal challenge. 1 And in March 2005, a federal district court dismissed yet another lawsuit, also filed by the ACLU of Arizona, against the same program. 2
The Institute for Justice successfully defended scholarship tax credits in both cases, and on October 12, 2006, IJ and its Arizona Chapter once again stepped in to defend school choice in the Grand Canyon State on behalf of four families seeking scholarships for their children, as well as the Arizona School Choice Trust (ASCT), one of the state’s leading school tuition organizations.
IJ represents parents like Stella Gomez, a single mother whose daughter Dorine once thrived at St. Gregory’s private school. Dorine suffers from brittle bone disease, and because her mother can no longer afford private school, she now attends a public school. While Dorine is adjusting to her new school, both she and Ms. Gomez want to see her back at St. Gregory’s. Dorine’s former teachers and classmates at St. Gregory’s loved and protected her, and they are also anxious to see her return to their care. It seemed like an impossible dream until Stella learned about the new expanded scholarship tax credit program and the hope of an ASCT scholarship.
The scholarship tax credit program, passed by the Arizona Legislature in June 2006, allows corporate donors to claim a tax credit for donations to private, non-profit school tuition organizations to provide scholarships for lower-income public-school students to attend private school.
The program builds on the success of Arizona’s individual tax credit program, which has grown to serve more than 22,500 children since it began in 1997. 3 Still, thousands more families are on waiting lists, hoping for a chance to send their children to the school of their choice. At the same time, 600 Arizona public schools have been declared failing under state standards and federal law. Expanding the tax credit program to include corporate donations can help secure a better education for more than 6,000 children stuck in public schools failing to meet their needs.
The latest legal attack on school choice in Arizona relies primarily on recycled arguments that have already been rejected by the Arizona Supreme Court, a federal district court and the U.S. Supreme Court. The ACLU of Arizona, the ASBA and the ACLPI are asking Arizona courts to overturn reams of legal precedent in order to halt a policy they don’t like.
For that reason, the Institute for Justice has filed a motion asking the Maricopa County Superior Court to dismiss the lawsuit outright, since it is so obviously in conflict with controlling legal authority. In essence, IJ is asking the court to cut short this frivolous lawsuit.
How Corporate Tax Credit Scholarships Work
Corporate tax credit scholarships offer Arizona parents of modest means expanded educational options by encouraging private donations to private school tuition organizations. Corporations can donate to school tuition organizations and receive a dollar-for-dollar tax credit on their donations. 4 For the first year, the total amount of donations is capped at $10 million, and that cap rises 20 percent each year, maxing out at $20.7 million by 2010. That year, the Arizona Legislature will have the opportunity to re-authorize the program. To ensure that donations do not exceed the cap, school tuition organizations must notify the Arizona Department of Revenue of corporations’ intent to donate. Donor requests are met on a first-come, first-served basis until the cap is reached. 5
School tuition organizations can use the privately donated funds to offer scholarships up to $4,200 for K-8 students and $5,500 for high school students to attend private schools. Maximum scholarship amounts under the program increase $100 each year. To qualify for a scholarship, a student’s family income must be no more than 185 percent of the income level set by the federal government for the free and reduced price lunch program. Contrary to claims made by the ACLU of Arizona in its media materials, only students currently attending public school or entering kindergarten are eligible for corporate tax credit scholarships. Once a child has received a scholarship, she may keep it in subsequent years. 6
The Benefits of School Choice
Arizona is a national leader in offering parents choice in education. In addition to the scholarship tax credit programs, the State offers private school scholarships to students with disabilities and students who have been placed in foster care, and it has the most ambitious charter school law in the nation. 7
School choice is among the most widely studied education reforms, and the results are uniformly positive for children who participate. 8 Study after study confirms that parents who are free to choose are much happier with their children’s educational experience, and their reasons include stronger academic programs, more personal attention and safer environments in their new schools. 9
Moreover, research shows school choice programs also consistently yield positive results for children who remain in public schools. When parents are free to choose their child’s school—rather than being assigned to schools by bureaucrats or the geography of district lines—public schools are spurred to improve in order to keep and attract students.
In Milwaukee, for example, public school officials admit that school choice has prompted long overdue public school reform and improvement. 10 In Florida, where students in failing public schools received scholarships to attend private schools, public school performance and test scores for children in the poorest performing schools improved markedly. 11 Researchers at the nation’s leading education school, Columbia Teachers’ College, found that competition in education improves educational outcomes such as test scores and graduation rates for students in public schools. 12
The Fiscal Impact of School Choice: Saving Taxpayers’ Money
Not only is school choice good for public schools, it can actually save the State money. In fact, corporate tax credit scholarships will save the State of Arizona an estimated $57.2 million over the life of the program—an average of $11.4 million annually—according to a recent fiscal analysis of the program. 13 That means thousands of scholarship students can be educated for a mere fraction of what the State would have spent had they remained in the public school system.
This is possible because students who transfer to private schools do so with scholarships that are less than the average per-student state base funding for Arizona public schools. Tuition for Arizona private schools averages $3,700 for elementary schools and $5,500 for high schools, and most scholarship tuition organizations give less than full scholarships so they can help more students. 14
Moreover, as the state Legislature passed the corporate tax credit scholarship program, it also approved a $480 million funding increase for the public schools. In Arizona, as in every other state with school choice, funding for public education has increased alongside the expansion of school choice.
Finally, the groups that brought this lawsuit make the bizarre claim that tax credits come out of the general fund and hence necessarily take away money from public schools. Of course, donations to scholarship organizations are private money, not public funds—just like donations to churches, Goodwill, the Salvation Army and other charitable organizations.
Like other states and the federal government, Arizona offers a wide array of tax incentives to promote a host of social programs the State deems valuable. In fact, data from the Arizona Department of Revenue (analyzed and released for the first time by the Institute for Justice) show that Arizona offers more than two-dozen programs that give individuals and corporations tax breaks totaling more than $210 million in 2003. 15 These programs include incentives for resource conservation, economic investments and social welfare (such as donations to charity organizations and tax credits for public school expenses). Not one of Arizona’s many tax credit programs impacts the State education budget or “diverts” money from public schools.
At $10 million, the corporate tax credit scholarships in their first year would represent just 4.5 percent of the total amount in tax benefits claimed by Arizonans, and would be equivalent to a mere 0.38 percent of total State tax revenue. 16
The Third Legal Attack: Blaine Again
Perhaps the most pointless and pernicious legal claim made by the ACLU of Arizona, the ASBA and the ACLPI is that corporate tax credit scholarships violate the Arizona Constitution’s Blaine Amendment. The Arizona Supreme Court specifically rejected that argument years ago in upholding the nearly identical individual tax credit scholarship program, recognizing the shameful history of state constitutions’ Blaine Amendments as “a clear manifestation of religious bigotry.” 17 Given that history, the court declared that it would “be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it.” 18
The U.S. Supreme Court has also recognized the Blaine Amendments’ “shameful pedigree” as a legacy of 19th century anti-Catholic and anti-immigrant sentiment. 19 And courts in Wisconsin and Illinois have also rejected attempts to halt school choice using state Blaine Amendments. 20
Besides the controlling caselaw, there are myriad other reasons why Arizona’s Blaine Amendment should not be a barrier to school choice.
First, Blaine Amendments were intended to address an issue very different from school choice: the possibility of direct funding for a Catholic school system (and other Catholic institutions) separate from the then-Protestant public schools. That is why Blaine Amendments prohibit public funds being spent “in aid of” institutions that are “sectarian” (code for Catholic). By contrast, school choice programs provide scholarships that aid parents and children—not the schools they happen to choose.
Choice is the key element. Not one dollar reaches a religious or a non-religious school without a parent deciding to spend it there, so the government cannot be said to be subsidizing religious schools—only parents and children. School choice programs are in fact neutral with respect to religion by allowing parents to choose from a broad range of schools without regard to the religious nature of the school.
With tax credit programs, the distance between government and religion is even greater because taxpayers also get to choose: first, whether to donate their funds to a school tuition organization, and second, which organization to donate to. As the Arizona Supreme Court wrote in Kotterman: “The way in which [a school tuition organization] is limited, the range of choices reserved to taxpayers, parents, and children, the neutrality built into the system—all lead us to conclude that benefits to religious schools are sufficiently attenuated to foreclose a constitutional breach.” 21
Second, in the case of tax credits, there is no “public money” at issue that could trigger a Blaine Amendment violation. Funds that support scholarships are privately donated at the choice of the donor to a private organization and never pass through the State treasury. As the majority writes in Kotterman, “[N]o money ever enters the state’s control as a result of this tax credit. Nothing is deposited in the state treasury or other accounts under the management or possession of governmental agencies or public officials. Thus, under any common understanding of the words, we are not here dealing with ‘public money.’” 22
To argue otherwise, as school choice opponents in Arizona do, is to claim that all taxpayer income is really public money even if it never reaches State coffers. Again, in Kotterman, the court notes, “Indeed, under such reasoning all taxpayer income could be viewed as belonging to the state because it is subject to taxation by the legislature.” 23 That the Legislature has the power to tax its citizens—or to forgo taxes to promote socially beneficial private philanthropy—does not make it the owner of all taxpayer income before taxes are actually paid.
Moreover, in the words of the Kotterman court, treating forgone taxes as public money “directly contradicts the decades-long acceptance of tax deductions for charitable contributions, including donations made directly to churches, religiously-affiliated schools and institutions.” 24 In fact, the latest data from the Arizona Department of Revenue indicate that taxpayers claimed deductions for charitable contributions amounting to more than $11 billion from 1998 to 2003. 25 The Department’s 20-page list of organizations eligible for such donations includes Alzona Lutheran Preschool and Child Care Center, Holy Family Church and Jewish Family and Children’s Service.
The ACLU of Arizona claims that the corporate tax credit scholarship program, unlike the individual tax credits at issue in Kotterman, is unconstitutional because it has a cap and the State administers the program by pre-approving applicants. But this makes no sense: if an unlimited program like the individual tax credit program is constitutional, certainly a limited program is constitutional. Under the corporate tax credit program, the State’s role is simply to ensure that the cap is enforced and that corporations can donate on a first-come, first-served basis, as provided by law. As with the individual tax credit program, the taxpayer’s donations never enter the State treasury.
Finally, Arizona’s Blaine Amendment should not be used as a barrier to school choice because to do so would amount to religious discrimination and violate the right to Free Exercise of Religion under the U.S. Constitution. The Free Exercise Clause of the First Amendment and the Equal Protection Clause of the 14th Amendment prohibit government discrimination on the basis of religion—such as by funding students who freely choose non-religious options, but not those who freely choose religious options. Yet that is exactly what school choice opponents argue—they want the State to discriminate based solely on religion. For 25 years, the U.S. Supreme Court has consistently held that laws that single out religion for discrimination violate the First Amendment’s right to the free exercise of religion. 26
Arizona’s Constitution Favors Additional Educational Options
School choice opponents in Arizona also argue that corporate tax credit scholarships violate the provisions of the Arizona Constitution providing for public schools, including K-12 schools and universities. 27 But nothing in this section of the Arizona Constitution prohibits the Legislature from going further and offering additional educational options. Past practices and legal precedent in Arizona make this clear.
For example, Arizona offers scholarships to students at the state’s private colleges and universities, just as it does for students in public universities, which are part of the “public school system.” In addition, Arizona’s original tax credit for individual donations to school tuition organizations, upheld in Kotterman, is nearly identical to the expanded program now being challenged. Contrary to the reasoning of school choice opponents in this case, the court wrote:
Including private schools in the mix of educational options available to students and parents, in itself, is not unconstitutional. Such a policy can properly facilitate a state’s overall educational goals. As the Mueller majority noted [referring to Mueller v. Allen, a U.S. Supreme Court case involving tax deductions], private schools frequently serve to stimulate public schools by relieving tax burdens and producing healthy competition…. They also further the objective of making quality education available to all children within a state. 28
Still, school choice opponents claim that the requirement under the Arizona Constitution to provide for a “general and uniform” public school system bars the Legislature from providing additional educational options.
This is not a new argument. School choice opponents tried it first in Wisconsin in 1990 in challenging the Milwaukee school voucher program. Although the Wisconsin Constitution also requires the state to provide a “uniform” public school system, the Wisconsin Supreme Court correctly reasoned that such a command does not prohibit the Legislature from doing more to further the education of its citizens by providing additional educational options. 29 School choice opponents tried again in Ohio, claiming the Cleveland school voucher program violated the Ohio Constitution’s requirement for a “thorough and efficient” system of public schools. School choice opponents again lost. 30
Unfortunately, the Florida Supreme Court in January 2006 struck down that state’s pioneering Opportunity Scholarships program for children trapped in failing public schools based on its education provision, which is similar to Wisconsin’s. 31 But there is little reason to think the Arizona Supreme Court will follow Florida’s utterly unprecedented ruling.
Except for containing the word “uniform,” Arizona’s education provisions are quite different from and broader than Florida’s. Moreover, Arizona has a strong history of providing broad educational options to its students, a practice the state Supreme Court has never once questioned, despite reviewing such cases. To the contrary, the Arizona Supreme Court’s logic directly contradicts the holding of the Florida court:
Some might argue that the statute in question runs counter to these goals [of improving education] by encouraging more students to attend private schools, thereby weakening the state’s public school system. But that is a matter for the legislature, as policymaker, to debate and decide. It is not for us to pass on the wisdom of this or any other social policy. 32
In short, the Arizona Supreme Court has already declared that scholarship tax credits further the educational goals of the State by “making quality education available to all” and that finding is backed up by evidence showing that school choice actually helps public schools through competition, and that the corporate tax credit program saves the State money. There is no reason for the court to abandon established precedent and practice in Arizona.
An “Established” Precedent
The final and perhaps the most absurd legal theory advanced by the ACLU of Arizona, the ASBA and the ACLPI is that the corporate tax credit program violates the Establishment Clause of the First Amendment to the U.S. Constitution. Both the Arizona Supreme Court and a federal district court rejected the same argument against individual tax credit scholarships. 33 More importantly, the U.S. Supreme Court put this argument to rest as early as 1983 in Meuller v. Allen, 34 and the Court similarly embraced school choice when it upheld Cleveland’s program in Zelman v. Simmons-Harris in 2002. 35 The nation’s highest court made it clear that school choice programs that offer parents a free and independent choice of a wide range schooling options—as Arizona’s programs do—are constitutional under the Establishment Clause. Given the clearly established precedent on this point, this may be far and away the most ridiculous legal attack ever brought in a school choice case.
Parents Fighting for School Choice
IJ represents four families defending the right to send their children to the school of their choice. In addition to Stella Gomez, IJ is defending school choice on behalf of Cecilia Hernandez, Stefanie Ortega and Kerin Zimmerman, as well as the Arizona School Choice Trust.
Cecilia Hernandez, a mother of four, sees that her children’s educational needs are not being met in their current public school. In particular, she fears that her oldest daughter, Magdalena, is losing interest in school and needs an environment that will challenge her to graduate and succeed in life.
Stefanie Ortega, a single mother, already sees her eight- and five-year-old daughters becoming bored with learning in their current school and hopes to move them to a nearby private school that will provide the structured learning environment she believes they need to succeed. She applied for scholarships last year through the individual tax credit program, but there was not enough money for additional scholarships and she was placed on a waiting list.
Kerin Zimmerman’s 14-year-old daughter, Hayley, already applied to the school of her dreams, Xavier College Preparatory School, a small, all-girls’ school. Hayley feels lost in the shuffle of her current public school and believes Xavier offers the kind of individual attention she needs to fulfill her ambition of going to college and pursuing a career in political activism. But she withdrew her application when Kerin realized the cost of tuition is simply beyond reach.
To all four of these parents, corporate tax credit scholarships offer the hope of a better future for their children.
IJ also represents the Arizona School Choice Trust, a private, non-profit corporation established in 1992 to provide privately funded scholarships for low-income Arizona school children whose parents could not otherwise afford to send them to the school that best suits their educational needs. ASCT currently provides scholarships to more than 850 children and expects to be able to award hundreds more scholarships—possibly covering every public school child currently on its waiting list—as a result of new donations through the expanded scholarship tax credit program. ASCT is not affiliated with any religious organization or school.
The litigation team will be led by Chip Mellor, the Institute’s President and General Counsel, along with Tim Keller, Executive Director of the Institute for Justice Arizona Chapter. Institute for Justice Senior Attorney Dick Komer will provide additional litigation support. Joining the litigation team Of Counsel is the Honorable Thomas A. Zlaket, former Chief Justice of the Arizona Supreme Court and author of Kotterman v. Killian, which declared Arizona’s tax credit program constitutional under both the state and federal constitutions.
In addition to its work in Arizona, the Institute for Justice also helped win the Zelman victory in the U.S. Supreme Court for school choice, representing parents in Cleveland’s school choice program, and successfully defended vouchers in Milwaukee and tax credits in Illinois. IJ is also working to open Maine’s century-old school choice program to both religious and non-religious schools.
For more information, please contact:
Director of Communications
Institute for Justice
901 North Glebe Road, Suite 900
Arlington, VA 22203
Timothy D. Keller
Institute for Justice
398 S. Mill Avenue, Suite 301
Tempe, AZ 85281
(703) 682-9320 (480) 557-8300