The Supreme Court has agreed to hear Arizona Christian School Tuition Organization v. Winn and Garriott v. Winn and will decide the constitutionality of a program that diverts tax money into private-school scholarships.
This program allows donors a dollar-for-dollar reduction in state income taxes. The reduction is good for contributions of up to $1,000 if made to certain non-profits organizations. These non-profits collect the money and distribute them in the form of scholarships for students. The law allows organizations to limit the scholarships they disperse in any fashion including exclusively to religious schools.
Unsurprisingly, organizations linked to a certain religions give the majority of scholarships to schools tied to that religion. Upset, taxpayers sued. (Another issue in these cases I’m not mentioning is taxpayer standing for lawsuits — usually there is none — but the unique circumstances are likely to allow it here).
The taxpayer plaintiffs stated — and the April 2009 Ninth Circuit opinion agreed — “that Arizona’s tax-credit funded scholarship program lacks religious neutrality and true private choice in making scholarships available to parents.”
The other side, however, points out that individuals decide to which non-profits they donate. Then those non-profits divvy up the money. They argue the money is clean of any ‘state taint’ that would render it subject to the Establishment clause. This view is consistent with Everson v. Board of Education, a 1947 case that upheld NJ’s travel reimbursement to parents of religious schools and Zelman v. Simmons-Harris where a government voucher program was upheld despite the option for a religious school voucher. The idea in both of these cases was that because the assistance goes to the children and not the church it is neutral toward religion.
What will happen?
I predict the program will be found constitutional. As seasoned SCOTUS watchers know — for the Supreme Court office pool, always vote against the 9th Circuit’s winning side. Furthermore, the weight of the existing Supreme Court precedent is behind the Court finding for the tax program’s constitutionality. Even if the taxpayers are correct that “the Arizona program is neither based on financial or academic need … [and] instead, […] awards most of its scholarships to the children of middle-class and wealthy parents on the basis of religion,” the fact remains that it is individuals who choose where to donate and the state has no hand in who gets the funds.
That’s what I think will happen and I expect to be right just about exactly half the time. What do you think?
Would you be upset to see your neighbor’s tax money going towards tuition at a religious school if you knew you could donate your own tax money to a non-profit with a history of creating scholarships for secular schools?