July 26, 2017

This is an exciting issue of Liberty & Law for school choice. We are pleased to report four different victories for choice, starting with our sweeping victory before the Georgia Supreme Court, which continues our unbroken winning streak on every tax credit case IJ has litigated. In this case, the court unanimously held that the taxpayers who filed the lawsuit over Georgia’s tax-credit scholarship program are not harmed by the program because it is funded by private, charitable donations, not from the state treasury. Therefore, the plaintiffs did not have legal standing to maintain their lawsuit. This victory means there is no question that tax credit programs are funded with private donations and that parents like IJ client Robin Lamp can continue to decide what school is best for their children.

When Robin—a single mom working multiple jobs—realized her first-born daughter had fallen nearly a year behind in her assigned public school in suburban Atlanta, she did not sit idly by. She enrolled both of her girls in a private school that would take their academic performance seriously.

This victory means there is no question that tax credit programs are funded with private donations and that parents like IJ client Robin Lamp can continue to decide what school is best for their children.

But no matter how much Robin saved from her various paychecks, no matter how many vacations she skipped and no matter how many meals she cooked at home, she could not afford the private school’s tuition on her own. Thankfully, she did not have to.

In 2008, Georgia enacted a tax-credit-funded scholarship program. Individual and corporate taxpayers who choose to contribute money to qualified Student Scholarship Organizations (SSOs) receive dollar-for-dollar tax credits against their state income taxes—up to $1,000 for individuals, $2,500 for families and $10,000 for businesses. SSOs are private, nonprofit charities that provide scholarships to students to access private schools. The total amount of tax credits is capped at $58 million annually, and credits are available on a first-come, first-served basis.

Georgians are so eager to fund the program that the tax credits disappear in a matter of days. Since its enactment, Georgia’s tax-credit scholarship program has grown rapidly and is currently one of the largest school choice programs in the country.

When Robin learned her daughters would receive scholarships, she said she felt like she’d “won the lottery.” But soon came a legal challenge to the program. Robin suddenly found herself in the shadows of worry as a constitutional cloud hung over the program that empowered her to exercise her right to direct the education and upbringing of her children.

The lawsuit, filed in 2014 by a group of state taxpayers, claimed that Georgia’s scholarship program violated several provisions of the state constitution, most prominently a provision declaring that “no money shall ever be taken from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.”

IJ has faced similarly worded provisions since the earliest days of our school choice work. But scholarships that empower families to choose from a variety of educational options are awarded “in aid of” parents and students, not “in aid of” schools. When defending a tax credit program, IJ argues further that the monies donated to SSOs are not “taken from the public treasury.” In other words, the donated funds are private, not public, dollars. This argument carried the day in Georgia.

Since IJ opened its doors more than 25 years ago, there has not been a single day that we have not been litigating somewhere in this country to defend a school choice program from legal attack. Our strategic approach to school choice litigation has allowed us to build a body of positive, protective precedent that is, one case at a time, changing the world.

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