In Defending Arizona’s School Choice Plan, Institute for Justice Sends Fourth Case to U.S. Supreme Court In Eight Years

John Kramer
John Kramer · May 28, 2010

Arlington, Va.—This week, the Institute for Justice learned it will take its fourth case to the U.S. Supreme Court in eight years, quite an accomplishment for the small public interest law firm based in Arlington, Va.  Most IJ cases feature battles between individual Davids vs. the government Goliath, but in the most-recent case accepted by the High Court, IJ is up against the American Civil Liberties Union, demonstrating the difference between the Institute for Justice and the civil liberties establishment.

This week, the Court agreed to decide whether Arizona’s scholarship tax credit program violates the Constitution’s Establishment Clause.  That will thrust school choice back into the national spotlight to a degree not seen since 2002, when IJ defended the Cleveland school choice program in Zelman v. Simmons-Harris, a case in which the U.S. Supreme Court ruled that vouchers are constitutional.

Chip Mellor, president and general counsel of the Institute for Justice, said, “Having the Supreme Court hear the Arizona school choice case is great news for parents and children in Arizona and for the national school choice movement.  It comes at a time when the prospects for school choice supporters in the November election look brighter than they have in years.”

Mellor said, “As a party in the case, the Institute for Justice will be at the center of the action and will do all we can to maximize this opportunity to educate the public about why school choice is vital for every family in America.  We have learned from the Court that as a matter of routine procedure our petition for summary reversal will be held until after the case is decided.  That means we will now focus on briefing the merits.”

The ACLU claims that the state, by giving taxpayers the choice to donate to both religious and nonreligious School Tuition Organizations, is unconstitutionally advancing religion in violation of the Establishment Clause of the First Amendment to the U.S. Constitution because most taxpayers to date have donated to religiously affiliated charities.

Mellor said, “This case is most notable for what it does not involve:  state action advancing religion.  Arizona structured its tax credit program to be completely neutral with regard to religion.  Neither taxpayers nor parents have any financial incentive to donate to a religiously affiliated scholarship organization over a nonreligious scholarship organization or to select religious over nonreligious schools.”

In addition to Zelman, the Institute for Justice litigated Swedenburg v. Kelly, in which the Supreme Court vindicated economic liberty by permitting the interstate shipment of wine directly to consumers; and Kelo v. City of New London, the eminent domain case which led to a nationwide backlash against this often-abused power of government.  Attorneys associated with IJ also successfully litigated District of Columbia v. Heller, in which the Supreme Court struck down D.C.’s ban on handguns and held that the Second Amendment to the U.S. Constitution protects an individual’s right to possess a firearm for private use.