IJ Returns to U.S. Supreme Court in Landmark School Choice Case

July 27, 2010

By Chip Mellor

When the U.S. Supreme Court considers Garriott v. Winn next term, it will mark IJ’s fourth appearance before the Court in only eight years. The Court will decide the constitutionality of Arizona’s individual tax credit program through which more than 27,000 children attend private schools. Having four cases before the Supreme Court in such a short time is further endorsement of IJ’s strategic approach to public interest law. The fact that we have reached this pinnacle in three of our four mission areas (school choice, property rights and economic liberty) makes the accomplishment all the more notable.

This case also underscores the importance of IJ having the ability to stand toe-to-toe with our adversaries and never blink. The Arizona school choice fight began more than 10 years ago when the teachers’ union filed suit in state court. Eventually they lost when the Arizona Supreme Court upheld the program. The ACLU then filed a new challenge in federal court that went all the way through the Ninth U.S. Circuit Court of Appeals before recently being accepted by the U.S. Supreme Court. The Institute for Justice has been involved every step of the way representing the interests of parents, children and the scholarship organizations that make use of the tax credits.

After a three-judge panel of the Ninth Circuit ruled against us, we asked the full court to reconsider its decision. It refused in a sharply divided opinion that prompted a stinging dissent by eight judges. The majority held that the program violated the Establishment Clause, even though the program is completely neutral with regard to religion and the tax credits are directed to scholarship organizations only through the private, independent choice of taxpayers. Those were the key hallmarks of the program at issue in Zelman v. Simmons-Harris, IJ’s Supreme Court case that upheld vouchers in Cleveland.

Parents Glenn and Rhonda Dennard with their children, (from left), Glenn II, Joshua, Marché, Sarah, and Micah. Glenn II, Joshua, Marché and Sarah attend Grace Community Christian School and Micah recently graduated from Xavier High School.

The Ninth Circuit, however, seized upon the fact that more taxpayers chose to give to religious organizations and most parents chose to use scholarships at religious schools to declare the program unconstitutional. It did this even though parents and donors have a free choice among scholarship organizations that provide scholarships to religious schools, others that provide nonreligious scholarships, and still others that provide both. In adopting this rationale, the Ninth Circuit simply ignored the admonition in Zelman that a dynamic program is not to be evaluated on a statistic that will change every year; so long as the government does not tilt the funding of the program for or against religious schools, it is presumptively constitutional.

Tim Keller, executive director of the IJ Arizona Chapter and IJ’s lead attorney on the case, explained why we are confident the program will be upheld: “This case is most notable for what it does not involve: state action advancing religion. Arizona structured its tax credit program to be completely neutral with regard to religion. 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.”

This case comes at a propitious time for the national school choice movement. The fall elections could well bring changes to a number of state legislatures that will then be poised to consider new choice legislation next year. In the meantime, we will work tirelessly to prevail in court and to use the case to thrust school choice into the national limelight to an extent not seen since 2002, when IJ successfully defended the Cleveland voucher program.

Chip Mellor is IJ’s President and General Counsel.

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