Peter J. Smith


US Supreme Court shoots down ACLU arguments in school choice case

Peter J. Smith

WASHINGTON, D.C., April 5, 2011 ( — The U.S. Supreme Court handed down a victory for school choice on Monday by dismissing an American Civil Liberties Union lawsuit against an Arizona program that allowed citizens to claim a tax credit for contributing their own money to private scholarships.

The 5–4 Supreme Court decision dismissed the case on grounds that the taxpayers suing the state over the program lacked standing, because they were not financially participating in the program. The ACLU took on the case from state taxpayers who asserted they were subsidizing religion, because the state was handing out tax breaks in this program to individuals for donating to educational causes that were not strictly secular.

The state allowed individuals to claim a $500 tax credit and couples a $1,000 tax credit for donating their own money to any scholarship tuition organization (STO), even if it supported private or religious education.

“Parents should be able to choose what’s best for their own children. This ruling empowers parents to do just that,” said ADF Senior Counsel David Cortman. ADF was one of the litigants in the case, defending the program on behalf of the Arizona Christian School Tuition Organization. The organization was one of 50 non-profit STOs distributing private donations as scholarships to 27,000 students at Arizona private schools.

“When Arizona taxpayers choose to contribute to STOs, they spend their own money, not money the State has collected from respondents or from other taxpayers,” wrote Justice Anthony Kennedy. He added, “respondents and other Arizona taxpayers remain free to pay their own tax bills, without contributing to an STO” and can also “contribute to an STO of their choice, either reliious or secular.”

“Like contributions that lead to charitable tax deductions, contributions yielding STO tax credits are not owed to the State and, in fact, pass directly from taxpayers to private organizations,” he continued.

Kennedy stated that the ACLU’s position treats private income “as if it were government property even if it has not come into the tax collector’s hands” – a legal concept that Kennedy said had “no basis in standing jurisprudence. Private bank accounts cannot be equated with the Arizona State Treasury.”

The court’s conservative wing – Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas, and Samuel Alito – joined Kennedy in the decision, although Scalia wrote a brief concurring opinion.

“The court’s reasoning is sound,” Cortman explained. “The government does not own 100 percent of every American’s paycheck. The donations are private money, not government money.”

“Parents should decide what schools their children attend and where their money goes. The ACLU failed in its attempt to eliminate school choice for hundreds of thousands of students nationwide and also failed to demonstrate that it had any constitutional basis for its clients to file suit in the first place,” added Cortman.

Justice Elena Kagan, writing for the minority, the court’s liberal wing, asserted that the ACLU’s case should not have been dismissed just because the state was granting a taxpayers a tax credit rather than directly appropriating funds for religious education. Kagan said the difference between appropriation and tax credit was a “novel distinction” that has “little basis in principle as it has in our precedent.”

The Arizona program has been in place since 1997. A federal court dismissed a civil suit against the program in 2005, but a 9th US Circuit Court of Appeals revived the case, saying the program violated the Establishment Clause of the First Amendment to the US Constitution.

The case is Arizona Christian School Tuition Organization v. Winn. The decision is available here.

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