Will 9th Circuit Overturn U.S. Supreme Court Precedent In Arizona School Choice Case?

John Kramer
John Kramer · February 18, 2010

Arlington, Va.—The Institute for Justice today asked the U.S. Supreme Court to reverse the 9th U.S. Circuit Court of Appeals’ decision in Winn v. Arizona Christian School Tuition Organization, which declared unconstitutional a 13-year-old Arizona school choice program that now provides private school scholarships to more than 28,000 children each year.  Filed 10 years ago by the ACLU of Arizona, the case involves an Arizona tax credit for individuals who donate to nonprofit organizations known as School Tuition Organizations that issue scholarships to enable low- and middle-income parents to send their children to private schools.

As a dissent in the case written by 9th Circuit Judge Diarmuid O’Scannlain explains, unless the U.S. Supreme Court intervenes, the decision “jeopardizes the educational opportunities of thousands of children who enjoy the benefits of [the Arizona program] and related programs across the nation.”  The Institute’s petition asks the Supreme Court not only to grant review in Winn but also to immediately reverse the decision without any further briefing or oral argument.  A copy of the Institute’s petition to the U.S. Supreme Court is available here:  www.ij.org/WinnCertPetition.

“Summary reversal is appropriate in this case because the 9th Circuit’s decision directly conflicts with settled U.S. Supreme Court precedent in no less than four cases decided by the High Court,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter, which is defending the program on behalf of parents and the Arizona School Choice Trust, one of the state’s leading School Tuition Organizations.  “The 9th Circuit’s decision conflicts with U.S. Supreme Court cases upholding similar programs, including the Court’s 2002 ruling in Zelman v. Simmons-Harris, which upheld a school voucher program in Cleveland, Ohio, which allowed parents to independently select private religious schools, just like Arizona’s program.  That makes this a compelling case for Supreme Court review.”

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.  But private choice, not government action, controls every level of Arizona’s tax credit scholarship program.

“This case is most notable for what it does not involve:  state action advancing religion,” Keller said.  “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.”

Since the tax credit’s enactment, 54 School Tuition Organizations have been established to serve a variety of needs; some target low-income families, others fund particular teaching methodologies, such as Montessori education, and others concentrate on geographic areas.  And, of course, some School Tuition Organizations are associated with religious institutions.  But it is taxpayers—not bureaucrats—who decide which privately operated scholarship organizations receive charitable donations, and it is parents who decide which schools to enroll their children in and which School Tuition Organizations to apply to for scholarship funds.

The U.S. Supreme Court’s Zelman decision held that school choice programs based on true private choice pass constitutional muster.  As the U.S. Supreme Court itself has stated, it has “repeatedly recognized that no reasonable observer would think a neutral program of private choice, where state aid reaches religious schools solely as a result of the numerous independent decisions of private individuals, carries with it the imprimatur of government endorsement.”  A reasonable observer examining Arizona’s law would discover:  (1) the state provides no direct aid to religious organizations; (2) taxpayers are free to donate to any school tuition organizations they desire, or donate nothing at all; and (3) no parents are coerced to send their children to a religious school.  Arizona’s program is clearly constitutional because it is controlled entirely by private decisions and private actors with no governmental influence or control.

“The First Amendment question in this case is whether Arizona’s tax credit program coerces parents to send their children to religious schools,” said Chip Mellor, president and general counsel of the Institute for Justice.  “The answer to that question is clearly ‘no’ because Arizona offers parents myriad options to attend nonreligious private and public schools including traditional public schools, charter and magnet schools, and an innovative, online virtual academy.”

Arizona leads the nation in the number of educational choices offered to parents.  Prior to enacting the tax credit, Arizona established one of the most robust charter schools law to date and now leads the country in charter schools per capita.  Additionally, there are magnet schools, open public school enrollment, accommodating home school policies, an online “virtual” public school, and back-to-basics traditional academies operated by school districts.  In light of all of the nonreligious options, both public and private, no family in Arizona is coerced to choose a religious education.

The stakes are high for the tens of thousands of Arizona children relying on these scholarships, as well as for children in other states with existing and proposed educational tax credits.  There is no reason to throw so many children’s educational futures into disarray based on a decision that is so far out of line with controlling precedent.  The U.S. Supreme Court should act quickly and decisively by summarily reversing the 9th Circuit’s opinion.

The Institute for Justice recently successfully defended Arizona’s Corporate Scholarship Tax Credit Program in state court in Green v. Garriott, which helps several thousand low-income families attend private schools, and was instrumental in securing the U.S. Supreme Court’s 2002 decision in Zelman v. Simmons-Harris and the Arizona Supreme Court’s 1999 decision in Kotterman v. Killian upholding the individual tax credit at issue in this case.