School choice?


Sept. 29, 2010

Last week, I filed a friend-of-the-court brief in the U.S. Supreme Court on behalf of the American Humanist Association and 10 other secular and religious nonprofits to remind the Court that government may not fund religion under the First Amendment of our Constitution. The name of the case is Arizona Christian School Tuition Organization v. Winn.

Here are the key facts. In 1997, Arizona adopted a statute that permits groups to establish school tuition organizations (STOs), receive contributions from state taxpayers and award scholarships to private schools. The secular purpose was to “provide equal access to a wide range of schooling options for students of every income level by defraying the costs of educational expenses incurred by parents.” That purpose is a sham, as over 80% of the scholarships are awarded to students who attend private religious schools.

The great linguist that I am, I translated for the Court: “The true purpose [of the statute] is to fund private religious education at taxpayer expense and thereby relieve parents of the financial burden of sending their children to private religious schools.”

I hope you’ll read my brief to get a fuller picture, but here’s a summary:

First, the STOs are instrumentalities of the state (i.e., state actors) because they are funded with dollar-for-dollar credits. This is a critical concept (and one that the other side disputes). Under the statute (Ariz. Rev. Stat. Sec. 1089), an individual taxpayer is permitted to reduce his or her state income tax liability by up to $500 per year by contributing the same amount to an STO. It is not a charitable contribution because the taxpayer actually pays nothing. Here’s why. If the taxpayer’s state income tax liability is $1,200, the taxpayer may write two checks — a $500 check to a STO and a $700 check to the Arizona Department of Revenue — or a single check in the amount of $1,200 to the Department of Revenue. Thus, the reality is that tax revenues (or more precisely, tax credits) are funding STOs, and not the individual contributors (who have not contributed a dime of their own money). 

Second, the statute permits discrimination on the basis of religion by not including “religion” as a basis upon which STOs aren’t permitted to discriminate. Not surprisingly, there are Catholic STOs that fund scholarships to Catholic schools, evangelical Christian STOs that fund scholarships to evangelical Christian schools, Jewish STOs that fund Jewish schools, etc.

Thus, Kathleen Winn and other plaintiff-respondents (and the AHA) argue that the state of Arizona, through the use of its tax system, is engaging in religious discrimination and funding private religious education in violation of the Establishment Clause of the First Amendment. (Funding of secular STOs is not at issue in Arizona Christian School Tuition Organization v. Winn.)

… Not so fast, argues the other side. The Supreme Court in Zelman v. Harris-Simmons (2002) upheld Cleveland’s voucher system. Arizona Christian School Tuition Organization v. Winn, however, is distinguishable from Zelman v. Harris-Simmons in several important respects.

First, unlike the Ohio statute in Zelman v. Harris-Simmons, there is nothing in the Arizona statute that requires STOs to award scholarships (or grants) on the basis of financial need. Consequently, “equal access” for low income families could never have been a genuine goal of the Arizona legislature. And, in fact, middle and upper income families — those who would otherwise send the children to private schools — have been the primary beneficiaries.

Second, parents in Zelman v. Harris-Simmons had true private choice because they received a voucher that they could use towards tuition at any private school, whereas, in Arizona Christian School Tuition Organization v. Winn, the STO’s determine which schools a student attends.

And third, a school which accepts a voucher under the Ohio statute is prohibited from discriminating on the basis of religion, whereas, in Arizona Christian School Tuition Organization v. Winn, the Arizona statute permits schools to discriminate in selecting students on the basis of religion.

If the Supreme Court agrees that STOs are state actors, it will affirm the decision of the court of appeals — holding that the statute as applied to STOs that restrict their scholarships to religious schools or to students based on their religiosity violates the First Amendment.


Bob Ritter is the staff attorney and legal coordinator of the Appignani Humanist Legal Center, legal arm of the American Humanist Association.