U.S. Supreme Court to Decide Fate Of Arizona School Choice Program

John Kramer
John Kramer · November 2, 2010

Arlington, Va.—Tomorrow, Nov. 3, 2010, the U.S. Supreme Court will hear oral argument in Garriott v. Winn, a case that will decide the fate of a 13-year-old Arizona tax credit program that funds scholarships for more than 27,000 elementary and high school students to attend private schools. The program authorizes an income tax credit of up to $500 for individual contributions to privately operated scholarship granting organizations. The arguments are expected to revolve around two central questions dealing with the Establishment Clause and taxpayer standing.

After oral argument, which should be concluded by around 11 a.m., the Institute for Justice will unveil a 50-foot banner outside the Supreme Court with photos of 800 children who benefit from school choice in Arizona. The banner, titled, “Faces of School Choice in Arizona: Real Children – Real Consequences,” will be held by school choice supporters who have been fighting for the re-authorization of D.C.’s Opportunity Scholarship Program. The Institute for Justice will also have parents and attorneys defending the program available to speak with the media.


The Ninth U.S. Circuit Court of Appeals declared the program unconstitutional under the First Amendment’s Establishment Clause even though every decision in the program is controlled by private individuals, and not by government officials. The U.S. Supreme Court is expected to reverse the Ninth Circuit’s decision because the Ninth Circuit ignored clear Supreme Court precedent upholding programs in which the government remains neutral when it comes to religious options for donors and parents.

“For decades, the U.S. Supreme Court has repeatedly upheld educational aid programs that are based on private choice, where individuals rather than the government decide where that aid is used,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter. “And private choice is the defining characteristic of Arizona’s tax credit program. The government stays completely neutral and allows donors to freely decide which scholarship organization to donate to and parents to choose the school that will best meet their children’s individual needs.”

The Supreme Court has upheld educational aid programs as far back as 1947 in the landmark case of Everson v. Board of Education, in which the Court upheld a New Jersey law that authorized the state to reimburse parents for the cost of busing their children to private and religious schools. The Court has since upheld state tax deductions for tuition to private and religious schools (Mueller v. Allen, 1983); a state aid program for the blind that permitted students to attend a Christian college to study for vocational ministry (Witters v. Washington Department of Services for the Blind, 1986); a federal aid program for children with disabilities who attend private and religious schools (Zobrest v. Catalina Foothills School District, 1993); and most recently state-funded private school scholarships for children to attend the private and religious schools of their parents’ choosing (Zelman v. Simmons-Harris, 2002). The underlying rationale for upholding these programs is that the government remains neutral, neither favoring nor disfavoring religion, and allows private individuals to make the decision as to how and where to use their benefits.

Moreover, the Supreme Court has also consistently upheld neutrally available tax benefits, such as deductions and exemptions, for donations to religious institutions when it is private decisions that direct the flow of funds. In Walz v. Tax Commission, 1970, the Court upheld a state statute granting a property tax exemption to charitable and religious organizations and in Hernandez v. Commissioner of Internal Revenue, 1988, the Court upheld federal tax deductions for contributions to religious organizations, including churches. But the Ninth Circuit’s reasoning essentially says that giving taxpayers an income tax credit for donations to religiously affiliated scholarship organizations constitutes governmental advancement of religion. If that is the case, then deductions for donations to churches, synagogues and other religiously oriented charities would also be unconstitutional. Considering the potentially wide-reaching negative effects of the Ninth Circuit’s decision, it is critical that the U.S. Supreme Court reverse the appellate court’s opinion and uphold Arizona’s tax credit program.

By providing the privately created and operated scholarship granting organizations maximum freedom to serve different communities, there are now more than 50 scholarship organizations serving a wide variety of people. There are organizations that serve particular geographic areas, organizations that serve low-income families—such as IJ-client Arizona School Choice Trust, one of the defendants in this case; organizations that focus on particular instructional methods, such as Montessori education; and, of course, there are religiously affiliated organizations. In 2009, the result of this diverse and robust program structure was that over 70,000 individuals donated more than $50 million to fund over 27,000 individual scholarships.

“Arizona’s scholarship program has allowed my five children to escape from the inadequate public schools in South Phoenix,” said Glenn Dennard, an Institute for Justice client, a scholarship parent, and the pastor of a small local church in South Phoenix. “They were instead able to attend safe, high quality private schools in our neighborhood.”

A recent study by Dr. Vicki Murray, a senior policy fellow at the Pacific Research Institute, demonstrates that Arizona’s scholarship program is helping tens of thousands of low- and middle-income families—just like the Dennards—attend private schools that would otherwise be foreclosed to them. The study is available at: http://www.hks.harvard.edu/pepg/PDF/Papers/PEPG10-18_Murray.pdf.

“Arizona’s scholarship program is vitally important to thousands of families who rely on the generosity of individual taxpayers to donate to private charities that fund scholarships,” said Dr. Murray. “Without this program, families like the Dennards will be forced to take their children out of schools that are providing their children a good education and return them to a failing public school system.”

“American public education is in desperate need of innovative education reforms,” declared Chip Mellor, IJ’s president and general counsel. “A victory in this case will open the door for states to adopt reforms that reject centralized control and are instead based on parental and donor choice, and that provide parents a wide array of educational options, including public, private and religious schools.”