IJ Asks U.S. Supreme Court to Reverse 9th Circuit Decision in Arizona School Choice Case

April 6, 2010

By Tim Keller

IJ has asked the U.S. Supreme Court to reverse the 9th U.S. Circuit Court of Appeals’ decision in Winn v. Garriott, which declared Arizona’s 13-year-old scholarship tax credit program unconstitutional. Arizona’s scholarship program allows individual taxpayers to claim a tax credit for donations to nonprofit organizations called school tuition organizations that, in 2008, issued more than 28,000 scholarships to enable low- and middle-income parents to send their children to private schools.

The 9th Circuit’s decision directly conflicts with no fewer than four U.S. Supreme Court cases. This lawsuit, filed 10 years ago by school choice opponents, claims that Arizona, by giving taxpayers the choice to donate to both religious and nonreligious school tuition organizations, is unconstitutionally advancing religion because most taxpayers to date have donated to religiously affiliated charities.

But the most notable thing about this case is what it does not involve: state action advancing religion. Private choice and private actors control every decision in the scholarship program, with no governmental influence or control. Under U.S. Supreme Court precedent, school choice programs based on true private choice pass constitutional muster. The Court stated in its 2002 Zelman v. Simmons-Harris decision, it has “repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement.”

Arizona structured its tax credit program to be completely neutral with regard to religion. It is taxpayers—not bureaucrats—who decide which privately operated scholarship organizations receive charitable donations, and it is parents who decide which schools to enroll their children in and which organizations to apply to for scholarship funds. Neither taxpayers nor parents have any financial incentive to donate to a religiously affiliated scholarship organization over a nonreligious scholarship organization, or to select religious over nonreligious schools. In fact, because most scholarships do not cover the entire cost of tuition, there are financial disincentives to choosing private schools.

At its core, the legal question in this case is whether Arizona’s tax credit program coerces parents into sending their children to religious schools. The answer to that question is clearly “no” because Arizona leads the nation in educational choices offered to parents. Arizona parents have numerous nonreligious options, including open public school enrollment, back-to-basics traditional academies operated by public school districts, charter and magnet schools, and an innovative, online virtual academy.

Under Arizona’s scholarship program: (1) the state provides no direct aid to religious organizations; (2) taxpayers are free to donate to any school tuition organizations they desire, or donate nothing at all; and (3) no family is coerced into sending their children to a religious school.

Given the high stakes, the U.S. Supreme Court should act quickly and decisively to reverse the 9th Circuit’s opinion. We are asking them to do this without even hearing oral argument. As Judge Diarmuid O’Scannlain, one of eight judges who dissented from the 9th Circuit order denying review by the full appellate court, observed­—unless the U.S. Supreme Court intervenes­—the decision “jeopardizes the educational opportunities of thousands of children who enjoy the benefits of [the Arizona program] and related programs across the nation.”

A copy of IJ’s petition to the U.S. Supreme Court is available at: www.ij.org/WinnCertPetition.

Tim Keller is the IJ Arizona Chapter executive director.


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