Back to School & Back to Court For Arizona Scholarship Tax Credits

John Kramer
John Kramer · August 9, 2004

Phoenix, AZ.—As schoolchildren prepare to head back to school, Arizona’s innovative scholarship tax credit program is heading back to court for a second legal challenge from school choice opponents.

The U.S. Supreme Court in June cleared the way for the second challenge to the program. The Arizona Supreme Court already found the program constitutional five years ago, but the Arizona Civil Liberties Union filed a second challenge in federal court. The Institute for Justice Arizona Chapter is defending the tax credits on behalf of scholarship recipients and the Arizona School Choice Trust, one of the scholarship-granting organizations.

“This frivolous lawsuit is a desperate, last-ditch legal effort by those afraid of true education reform,” said IJ-AZ Executive Director Tim Keller. “School choice gives thousands of low-income Arizona families the opportunity for a better education in schools that work for them, and thousands more eager families are on waiting lists. There is no good legal or policy reason to take these scholarships away.”

Institute for Justice Executive Director Tim Keller is available for media interviews to discuss Arizona’s scholarship tax credits and the ongoing legal challenges to the program.

In 1999, the Arizona Supreme Court upheld the scholarship tax credits in a landmark decision, Kotterman v. Killian. Teachers’ unions and other special interest groups charged that because some scholarship recipients attend religious schools, the program violated the Establishment Clause of the First Amendment as well as the Arizona Constitution. In a strongly worded opinion, the Court rejected those claims and criticized choice opponents for relying on a provision of the state Constitution that it called “a clear manifestation of religious bigotry.” The U.S. Supreme Court agreed that school choice does not violate the Establishment Clause when it upheld Cleveland’s voucher program in 2002.

Despite those rulings, the AzCLU in the current federal lawsuit contends that the scholarship tax credit violates the First Amendment’s Establishment Clause. The State of Arizona asked the federal courts to dismiss the suit under the Tax Injunction Act, which forbids lawsuits challenging taxes in federal court if they can be challenged in state court, but the U.S. Supreme Court allowed the case to proceed. The Institute for Justice Arizona Chapter has filed an additional motion to dismiss the lawsuit; that motion is pending before the district court.