Supreme Court’s May 20 Conference Is an Important One for School Choice

John Kramer
John Kramer · May 11, 2010

Arlington, Va.—The U.S. Supreme Court is scheduled to decide at its May 20 private conference whether to accept an important school choice case that could have major implications for other tuition tax credit school choice programs across the nation.

In Winn v. Arizona Christian School Tuition Organization, the 9th U.S. Circuit Court of Appeals declared unconstitutional a 13-year-old Arizona tuition tax credit program.   Arizona’s tax credit is available to 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, including religious schools.

The Institute for Justice recently filed its reply brief in the case, which emphasized that the 9th Circuit decision warrants Supreme Court review because the appeals court ignored controlling Supreme Court precedent and because its decision conflicts with an Arizona Supreme Court’s 1999 decision upholding the program from an identical legal challenge.  As it did in its original petition asking the Supreme Court to grant review in this case, the Institute’s reply brief again asks the Supreme Court to immediately reverse the 9th Circuit’s decision without any further briefing or oral argument.  A copy of the Institute’s original petition to the U.S. Supreme Court is available here:  And the reply brief filed today is available here:

“Immediately reversing the 9th Circuit’s decision is appropriate because it directly conflicts with no less than four U.S. Supreme Court cases and because it contradicts an indistinguishable Arizona Supreme Court ruling upholding the tuition tax credit,” 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 case was filed 10 years ago by the ACLU , which claims that the tax credit program advances religion because taxpayers—free from any government pressure—have independently decided to give more money to religiously affiliated School Tuition Organizations than to nonreligious organizations.  Arizonans are free to give to any of the 54 organizations currently operating in Arizona, including many that are nonreligious.  Especially in light of the U.S. Supreme Court’s ruling in Zelman, which held that school choice programs pass constitutional muster when they are based on true private choice, there is no legal basis for the 9th Circuit to question the constitutionality of Arizona’s tax credit program.

“Private choice, not government action, controls Arizona’s tax credit program,” Keller said.  “The entire program is religiously neutral.  Taxpayers and parents have no financial incentive to donate to either a religiously affiliated scholarship organization over a nonreligious scholarship organization or to select a religious over a nonreligious school.”

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.  Until the Supreme Court acts, at least four other major scholarships tax credit programs in Georgia, Iowa, Pennsylvania and Rhode Island will remain under a constitutional cloud.  The Court should act quickly and decisively by summarily reversing the 9th Circuit’s opinion.