9th Circuit to Decide Fate Of Arizona School Choice Program

J. Justin Wilson
J. Justin Wilson · January 22, 2008

Phoenix—The scholarships of nearly 25,000 Arizona schoolchildren will be on the line this Thursday, January 24, as the 9th U.S. Circuit Court of Appeals hears oral argument in an eight-year-old challenge to the state’s scholarship tax credit program.

By offering a state tax credit, the program encourages private donations to non-profit organizations that provide scholarships for families to choose private schools. Four other states have similar programs. The case marks the first time a federal appellate court has heard a challenge to a school choice program since the U.S. Supreme Court’s landmark 2002 ruling in Zelman v. Simmons-Harris vindicating school vouchers in Cleveland.

“For nearly 10 years, Arizona’s scholarship tax credit has given tens of thousands of families the freedom to choose a school that best suits their children’s needs,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter. Keller will defend the program before the 9th Circuit on behalf of parents and the Arizona School Choice Trust, a scholarship-granting organization. “For the sake of the thousands of children relying on this program, the court should side with well-established precedent and reject this attack on school choice.”

“My family would be devastated if we could not exercise our freedom to choose our children’s schools,” said Pastor Glenn Dennard, an IJ client with five children using tax credit scholarships. “My wife and I cannot stick our children in the failing public education bureaucracy. Our family has totally benefited from being a part of the power of choice.”

This is opponents’ second attempt to dismantle the scholarship tax credit program. In the 1999 Kotterman case, the Arizona Supreme Court declared unequivocally that scholarship tax credits are consistent with both the Arizona Constitution and the U.S. Constitution’s Establishment Clause.

This is for two reasons. First, the scholarships are funded by privately donated dollars, not public funds. That is why the U.S. Supreme Court has upheld similar tax benefit programs as far back as 1983 in Mueller v. Allen. Second, the scholarships give parents a free and independent choice among a wide array of religious and non-religious options. On this score, the Arizona court anticipated the U.S. Supreme Court’s Zelman ruling.

Despite this overwhelming precedent in favor of school choice, the American Civil Liberties Union of Arizona in 2000 filed a second lawsuit, this time in federal court, alleging the program violates the Establishment Clause. In 2005, the district court granted IJ’s motion to dismiss the suit, and the ACLU of Arizona appealed.

“Every day, the parents we serve say ‘thank you’ for giving them the opportunity to escape an educational system that does not meet their children’s needs,” said Michael Kelly, president and executive director of the Arizona School Choice Trust, which gives scholarships to 1,147 low-income children across the state. “Every family and every child in Arizona should have this opportunity. If this was the case, the education system would only get better.”

Through Arizona’s program, individual taxpayers may receive a tax credit of up to $500, or $1,000 for married couples, for donations made to a scholarship tuition organization such as ASCT. In 2006, the program raised more than $51 million statewide. Arizona also offers a tax credit for corporate donations to scholarship funds, as do Florida, Pennsylvania and Rhode Island. Iowa, like Arizona, offers an individual tax credit program. No such tax credit program has ever been struck down by the courts.

“Arizona’s scholarship tax credit has served as a model of educational innovation for reformers nationwide—and it should not be derailed by baseless legal claims,” said Chip Mellor, IJ president and general counsel. “We will continue the fight to ensure that parents in Arizona and across the country have the freedom to choose the best schools for their children.”

The case is Winn v. Garriott, and a three-judge panel will hear arguments at 9:30 a.m. in Pasadena, Calif. The court typically posts audio files of oral arguments online by noon the day after the argument here.

IJ, the nation’s leading legal advocate for school choice, helped secure the Kotterman and Zelman victories for school choice as well as rulings upholding programs in Milwaukee and Illinois. IJ is currently defending Arizona’s corporate tax credit and its scholarship programs for special needs and foster children.