March 31, 2016

School choice is alive in Georgia! IJ recently scored a major courtroom victory in the Peach State on behalf of more than 13,000 students. These students rely on a school choice program to escape poorly performing public schools in favor of private schools that better meet their unique learning needs.

Georgia’s school choice program is funded by private contributions to private charities, like the Georgia GOAL Scholarship Program, which awards scholarships to families based on financial need. Adopted in 2008, the program permits both corporate and individual taxpayers to contribute to such scholarship organizations and then claim an income tax credit for the donation. The amount of tax credits available to taxpayers is capped at $58 million, but the program is so popular that the cap was reached on Jan. 4 this year.

Just as there is no one-size-fits-all approach to educating children, there is no one-size-fits-all approach to designing school choice programs. But one of the most enduring and constitutionally sound school choice policies is to fund programs with a tax credit mechanism. At present, there are 20 scholarship tax credit programs operating in 16 states. Although the ins and outs of each program vary from state to state, as a general matter the programs provide private individuals or corporations with a tax credit for their voluntary donations to nonprofit organizations that use the donated funds to provide elementary and secondary students with scholarships to attend private schools.

Time and time again, IJ’s merry band of school choice litigators, led by the ebullient Dick Komer, has been called upon to defend school choice programs from legal attack. In fact, there has not been a single day in IJ’s history that we have not been in court somewhere in this country defending a school choice program. And in that 25-year span, IJ has never lost a challenge to a school choice program funded by tax-credit-eligible donations to private charitable organizations.

One of the reasons that IJ has never lost a tax credit case is because we established a vital principle in our very first case defending a tax credit program, namely that tax-credit-eligible donations to private charities are private funds, not public funds.

In 1999, in Kotterman v. Killian, the Arizona Supreme Court said, “For us to agree that a tax credit constitutes public money would require a finding that state ownership springs into existence at the point where taxable income is first determined, if not before.” And 10 years later, the U.S. Supreme Court affirmed that principle in another IJ case, Arizona Christian School Tuition Organization v. Winn, when it said that any “contrary position assumes that income should be treated as if it were government property even if it has not come into the tax collector’s hands.”

Because IJ established that tax credit scholarship programs are funded with private dollars, constitutional provisions that prohibit certain uses of appropriated “public funds” simply do not apply, as a matter of their plain text, to tax credit scholarship programs. IJ’s role defending school choice programs is crucial because— in addition to giving a voice to those individuals with the most at stake, the parents and children who benefit from the programs—IJ litigates with a strategic focus on obtaining legal precedent that can be exported to other states in defense of educational freedom.

In Georgia, we gave voice to families like the Quinoneses, who rely on the tax credit program to send their children to the Notre Dame Academy, a school that shares the family’s values and provides a high-quality education. After the family painting company went out of business, finding steady work was difficult. The Quinoneses tried their local public schools, but their children’s educational experience was disappointing. Their GOAL scholarships provided a lifeline that rescued the Quinones kids’ education from shipwreck.

And the Quinoneses’ story is just the tip of the iceberg. Through 2014, 9,048 students have received GOAL scholarships. The average value of those scholarships has been $3,721 per student. In 2014, the average household income of scholarship recipient families was $26,738, and since their inception 36 percent of scholarships have been awarded to minority recipients. Thanks to IJ’s perseverance and prior legal precedents, tax credit scholarship programs will continue to change lives nationwide.

Tim Keller is managing attorney of IJ Arizona.

Subscribe to get Liberty & Law magazine direct to your mailbox!

Sign up to receive IJ's bimonthly magazine, Liberty & Law, along with breaking news updates about the Institute for Justice's fight to protect the rights of all Americans.