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School Choice Under Attack in Arizona—Again

August 2004

School Choice Under Attack in Arizona—Again

By Tim Keller

Arizona’s tuition scholarship tax credit has been providing thousands of low-income families the means to send their children to the private school of their choice for seven years. Passed in 1997, the scholarship program was the nation’s first tax credit for contributions to nonprofit organizations that offer tuition scholarships to families of modest means.

The program was immediately challenged by the teachers’ union in state court on grounds that the program violated the federal constitution’s Establishment Clause as well as provisions of Arizona’s constitution, most notably the state’s Blaine Amendment. The Arizona Supreme Court rebuffed those claims and upheld the program.

Several years later, in 2000, the local ACLU affiliate (the AzCLU) filed Winn v. Hibbs, a collateral attack on the program in the federal District Court of Arizona, again alleging an Establishment Clause violation. That lawsuit was quickly dismissed under the Federal Tax Injunction Act, a 1937 law that says federal courts will not meddle in state tax issues. In 2002, the 9th Circuit, in a decision by the notoriously liberal Judge Stephen Reinhardt, reversed the dismissal.

The U.S. Supreme Court agreed to hear the State’s case and court watchers believed that the U.S. Supreme Court would reverse the 9th Circuit decision and uphold the District Court’s dismissal. However, in June of this year, the Court affirmed the 9th Circuit’s reversal, meaning that the AzCLU’s lawsuit will now return to the District Court.

IJ’s Arizona Chapter (IJ-AZ) intervened in the lawsuit on behalf of parents such as Pastor Glenn Dennard of Phoenix, whose five children attend a private Christian school thanks only to the tuition grant provided by the Arizona School Choice Trust (also an IJ-AZ client in this lawsuit).

Given the recent U.S. Supreme Court decision upholding Cleveland’s voucher program, this is the most frivolous challenge to a school choice program in the country. IJ-AZ looks forward to scoring another “Winn” for the school choice movement while protecting parental choice in the Grand Canyon state.

Tim Keller is executive director of the Institute for Justice Arizona Chapter.

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