U.S. Supreme Court to decide challenge to tax credits for private schools
PHOENIX -- The future of a challenge to Arizona's controversial tax credits to help students go to private and parochial schools will have to be decided by the U.S. Supreme Court.
In a split decision, the majority of the full 9th U.S. Circuit Court of Appeals refused to disturb a ruling of a three-judge panel that foes of state tuition tax credits for private and parochial schools are entitled to try to prove they are unconstitutional.
Tim Keller, attorney for the Institute for Justice which is defending the credits, vowed to take the issue to the Supreme Court. He said the appellate court got it wrong in concluding that the credits, at least the way they work in Arizona, amount to the state advancing the cause of religion.
The decision, by itself, does not void the credits. But unless overturned, it gives challengers the first real chance they have to make their case that the program effectively has the government illegally aiding in religious instruction.
The law allows individuals to donate up to $500 -- $1,000 for married couples -- to organizations that provide scholarships for students to attend private and parochial schools. There is no actual cost to the donors as they can deduct the amount contributed on a dollar-for-dollar basis from their state income tax liability.
In 2008, the most recent year for which numbers are available, Arizona resident diverted nearly $55.3 million to these tuition organizations that otherwise would go to the state treasury.
Foes filed suit, saying the plan is unconstitutional because the law has the effect of giving most of the money to religious schools.
In 2005, U.S. District Court Judge Earl Carroll said that may be true. But Keller argued -- and Carroll agreed -- that as long as donors are free to decide without state interference where to give money, and parents decide where to send their children to school, there is no constitutional violation.
In Wednesday's decision, though, Judge Dorothy Nelson said the evidence shows that isn't the way the program actually works in Arizona.
She said children who want scholarships from certain organizations are restricted to using them to attend specific religious schools. That, the judge said, is different than an Ohio program whose legality was upheld by the U.S. Supreme Court where a parent is given a tuition voucher he or she is free to use at any secular or religious school.
And there is far more money available for religious school scholarships than for help in going to secular schools, she said, money that came from that dollar-for-dollar state tax credit.
Keller acknowledged that is true. But he said that is only because taxpayers, who are free to give -- or not -- to any tuition organization chose to give more money to certain ones than others. That simply means they have more money to give out to students willing to attend the schools they support.
More to the point, Keller said nothing in the law itself creates that situation.
"It has to be state action that results in any sort of any advancement of religion' to run afoul of U.S. Supreme Court precedent, he said. "Here, the program is entirely governed by private action.'
Keller said that the situation would have been entirely different if Arizonans had chosen to give more money to organizations that help students attend secular schools. But in either event, he said, state government did not create the situation.
The two largest recipients of tax credit donations are the Catholic Tuition Organization of the Phoenix Diocese and the Arizona Christian School Tuition Organization restricts its scholarships to be used at "evangelical' Christian schools.