Arguing a case in front of a state supreme court is a thrilling moment for a constitutional lawyer. It can be just as thrilling, however, to secure a supreme court victory without ever having to step foot in the courtroom. IJ secured just such a victory on October 27, 2009, when the Arizona Supreme Court declined to review the March 2009 decision in Green v. Garriott upholding Arizona’s Corporate Tuition Tax Credit Program.
The Supreme Court’s decision puts an end to a three-year-old legal challenge to a program that funds scholarships for low- and middle-income children who transfer from public to private schools. The nearly 3,000 parents who rely on the scholarship program to send their children to private schools can now breathe a sigh of relief and be fully assured that their tax-credit-funded scholarships are constitutional.
Filed by the ACLU of Arizona and the Arizona School Boards Association, Green v. Garriott was designed by school choice opponents to try to overturn another IJ-secured ruling: the Arizona Supreme Court’s 1999 decision in Kotterman v. Killian. Kotterman upheld Arizona’s innovative Individual Tax Credit Program from attacks under both the Arizona and federal constitutions.
IJ intervened in Green v. Garriott on behalf of the Arizona School Choice Trust (a nonprofit School Tuition Organization that receives corporate contributions to fund private school scholarships) and parents who desperately wanted to transfer their children from public to private school but lacked the financial means. One of those parents, Stella Gomez, had to pull her daughter, Dorine—who has brittle bone disease—from her Catholic school after Stella’s husband walked out on the family. Stella no longer had the financial means to send Dorine to the private school that understood and met Dorine’s special needs.
The Arizona Supreme Court’s decision means the many parents like Stella, who prefer a private education for their children, will have the chance to see their dreams come true. Indeed, school choice programs like Arizona’s Corporate Tuition Tax Credit help fulfill the promise of an equal opportunity for every child to receive a good education by recognizing there is nobody better suited to determine the educational needs of a child than that child’s parent or guardian.
IJ is also defending Arizona’s Individual Scholarship Tax Credit Program from legal attack in a federal case titled Winn v. Garriott. Winn was originally dismissed as meritless, but a three-judge panel of the Ninth U.S. Circuit Court of Appeals reinstated the case in April 2009. The Ninth Circuit denied IJ’s request that the entire court rehear the case, but eight judges joined a dissent arguing that the court’s decision cannot be squared with U.S. Supreme Court precedent. In fact, the Ninth Circuit’s decision is so far out of line with existing precedent that IJ has asked the U.S. Supreme Court to summarily reverse the Ninth Circuit’s ruling without additional briefing or oral argument. The odds are against such a ruling. But long odds are nothing new here at IJ. And, as we learned in Green v. Garriott, victory without supreme court argument can be a genuine thrill.
Tim Keller is the IJ Arizona Chapter executive director.