Trial Court Throws Out ACLU’s Latest Frivolous Lawsuit

June 1, 2007

By Tim Keller

My mom taught me that if I couldn’t say anything nice, I shouldn’t say anything at all.  Putting her teaching into practice is difficult when writing about IJ’s school choice opponents, so I’ll just say this:  They are a tenacious bunch.

“The ACLU/ASBA case recycles the same arguments made in a previous lawsuit defended by the Institute for Justice.”

Arizona has seen no less than five lawsuits filed by the ACLU of Arizona and its allies—groups such as the Arizona Education Association (AEA) and Arizona School Boards Association (ASBA)—challenging all four of Arizona’s school choice programs.  This past September, the ACLU and ASBA forged an alliance and hatched a scheme to file the most frivolous challenge to date against any of Arizona’s school choice programs:  a lawsuit seeking to have Arizona’s new Corporate Tuition Tax Credit program struck down as unconstitutional.

The challenged program simply expands the state’s successful individual tuition tax credit program to allow corporations to donate to school tuition organizations (STOs).  The STOs are required to set aside those contributions for tuition grants to low- to moderate-income families whose children are transferring from public to private schools.

The ACLU/ASBA case recycles the same arguments made in a previous lawsuit defended by the Institute for Justice, Kotterman v. Killian, in which we protected the individual tax credit and secured an Arizona Supreme Court opinion declaring in no uncertain terms that tuition tax credits do not violate the state or federal constitutions.

In this latest court challenge, IJ quickly intervened in the new lawsuit on behalf of the Arizona School Choice Trust, a school tuition organization participating in the corporate program, and four scholarship-eligible families.  The Institute immediately moved to have the case dismissed.  The State of Arizona soon followed IJ’s lead with its own motion to dismiss.

Not only does the absurdity of our opponents’ legal claims fuel my passion to win this case, so does the picture of Dorine Gomez—one of our clients—that I keep pinned to my bulletin board.  Dorine has brittle bone disease and had to leave her private school, St. Gregory’s, after her mother fell on tough financial times.  Once the new tax credit program is fully implemented next year, Dorine will be able to return to her beloved classmates and teachers who loved and watched over her with the kind of tender care the public school has been unable to provide.

After a fast-paced briefing schedule, the Honorable Janet Barton heard oral arguments in the case this past March.  Judge Barton began the morning argument by announcing her intention to grant the motions to dismiss.  It was an extremely gratifying moment.  The state’s lawyer and I wisely limited our argument time.  Even though I had plenty of things to say, it was clearly one of those times not to say much at all.

Wasting no time, Judge Barton issued her written opinion later that afternoon dismissing the lawsuit.  Predictably, the ACLU has promised to appeal.  However, as tenacious as school choice opponents may be, they have nothing on the resolve of IJ’s merry band of litigators to defend the tax credit from their futile legal claims.  We will vigorously defend our clients’ right to choose the school that best suits their children’s needs until the ACLU’s last appeal is exhausted.

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

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