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Supreme Court hands school choice big win
Posted on Apr 4, 2011 | by Michael Foust

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WASHINGTON (BP)--In a major victory for supporters of school choice, the U.S. Supreme Court April 4 let stand an Arizona law that gives tax credits for contributions to private organizations that fund religious school scholarships.

The justices, in a 5-4 ruling where the conservative bloc formed the majority, said Arizona taxpayers who filed suit against the law did not have standing to bring the case. The five justices in the majority also made clear they believe tax credits are not the same as a direct government expenditure. The Southern Baptist Ethics & Religious Liberty Commission had filed a legal brief supporting the law.

"Private bank accounts cannot be equated with the Arizona State Treasury," Justice Anthony Kennedy wrote for the majority.

The majority's ruling reversed a decision by the U.S. Ninth Circuit Court of Appeals, which had found the law unconstitutional on the grounds that it violates the First Amendment's Establishment Clause.

Under the Arizona law, citizens can contribute money to what are called school tuition organizations, or STOs. The STOs then provide scholarships to students attending private schools, many of which are Christian. STOs also fund scholarships for non-religious private schools. Taxpayers receive up to a $500 tax credit for individuals or $1,000 for married couples. Since the law went into effect in the late 1990s, more than $350 million has flowed through the STOs. There are more than 50 STOs.

"The distinction between governmental expenditures and tax credits refutes respondents' assertion of standing," Kennedy wrote, referencing the taxpayers who sued. "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.... [R]espondents and other Arizona taxpayers remain free to pay their own tax bills, without contributing to an STO. Respondents are likewise able to contribute to an STO of their choice, either religious or secular."

The tax credit, Kennedy said, "is not tantamount to a religious tax or to a tithe."

Joining Kennedy in his decision were Chief Justice John Roberts and Justices Clarence Thomas, Antonin Scalia and Samuel Alito. Justice Elena Kagan -- who was nominated by President Obama and confirmed just last year -- wrote the dissent and was joined by Justices Ruth Bader Ginsburg, Sonia Sotomayor and Stephen Breyer.

"Today's decision devastates taxpayer standing in Establishment Clause cases," Kagan wrote. " ... The Court's opinion thus offers a roadmap -- more truly, just a one-step instruction -- to any government that wishes to insulate its financing of religious activity from legal challenge.... No taxpayer will have standing to object. However blatantly the government may violate the Establishment Clause, taxpayers cannot gain access to the federal courts."

The ACLU brought the challenge. Conservative groups said the decision was significant.

"Parents should be able to choose what's best for their own children. This ruling empowers parents to do just that," David Cortman, an attorney with the Alliance Defense Fund, said in a news release. ADF supports the law and represented an STO -- the Arizona Christian School Tuition Organization -- in the case. That particular organization was the main STO party in the case.

"Parents should decide what schools their children attend and where their money goes," Cortman said. "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."

Said Mathew Staver, founder and chairman of Liberty Counsel, which also filed a legal brief supporting the law, "Parents deserve the right to choose how to educate their children. This program gives parents the rights that everyone should enjoy. It is contrary to our history of liberty that parents should be forced to educate their children in government schools, particularly when some schools doom their children to failure. Parents know best about their children's well-being and should be given every opportunity to provide a quality education of their choice." Liberty Counsel's brief represented the American Association of Christian Schools.

The Ethics & Religious Liberty Commission filed its brief on behalf of the state of Arizona and the Arizona Christian School Tuition Organization. In the brief, the ERLC argued that a ruling in favor of the opposed taxpayers "undermines rather than protects First Amendment values like governmental neutrality, private choice and free exercise [of religion]." Joining the ERLC on the brief were the National Association of Evangelicals and the Convocation of Anglicans in North America.

The case was Arizona Christian School Tuition Organization v. Winn.
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Michael Foust is associate editor of Baptist Press.
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