by David Safier
The 9th Circuit Court of Appeals ruled our tuition tax credit law is unconstitutional because so much of the money is targeted for scholarships at religious schools. The Supreme Court is looking at the ruling right now.
It looks like the tax credit law will rise or fall depending on which of these two arguments prevail.
The anti-tax credits argument says that 70-85% of the scholarship money goes to students attending religious private schools. That's not surprising since, both in Arizona and the rest of the country, that's about the percentage of private schools which have religious orientations. (When you think "private schools," think religious schools, along with a smattering of expensive, college preppie schools. You won't be far wrong.) That means, if taxpayers are supporting predominantly religious schools, it's violation the First Amendment's establishment clause. And the fact that the biggest STOs (School Tuition Organizations) give exclusively to religious schools adds to the problem.
The pro-tax credit argument says this isn't tax money. It's private donations which are later offset by the tax credits. In the real world, that's a distinction without a difference, but that's the argument.
I expect the Supreme Court is going to rule in favor of our tax credit law. If it doesn't, it may mean that STOs can't restrict themselves to giving scholarships only to students at religious schools.
My feeling is, I would rather the Supreme Court rule to leave things more-or-less as they are — at most, say STOs can't have a religious orientation. It's not because I like the tuition tax credits. I don't. It's because I expect the current legislature would "fix" the problem by making things worse than they are now.
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Bess, I hope the quote you took from the LA Times is an overstatement on the paper’s part. As I read it, the Obama administration didn’t say anything about tax funds. It said, since tax credits aren’t tax funds, no taxpayer can sue to say his/her money has been used to support parochial schools.
I also hope that a ruling for the tax credits doesn’t damage the current interpretation of the establishment clause. If the decision is narrow enough, it shouldn’t. But if it is broad enough, I suppose it could open the floodgates for more government support of religion.
At stake is whether or not citizens can sue when tax credits are used to fund religious education and whether or not taxpayers have the right to sue to stop it. “The Obama administration says taxpayers have no right to sue if a state uses tax funds for parochial school tuitions,” the Los Angeles Times reports.
This diary at Daily Kos
http://www.dailykos.com/story/2010/11/5/1544/76710
outlines the case.
Actually, David, this case involves the interpretation of Article 11, Section 7 of the Arizona Constitution which provides, in relevant part, that “No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the state, as teacher, student, or pupil…”
The Arizona Supreme Court in an earlier challenge to the STO law created the legal fiction that since the state was not paying money directly to religious schools but rather taxpayers were receiving a tax credit to send their kids to school, this constitutional provision was not violated.
I agree with you that this is a distinction without a difference in practical application of the law. The taxpayer is merely a “strawman transaction” through which religious schools receive a direct financial benefit solely by means of the STO law, and the state suffers a financial detriment, the loss of tax revenue that would otherwise flow to the public school system.
This later case challlenges the STO law in practical application rather than in theory as in the earlier test case. The overwhelming benefit of the STO tax credit has gone to religious schools in practical application of the law, which is why the 9th Circuit found that it violated this provision of the Arizona Constitution.
The conservative activists on the U.S. Supreme Court are inclined to adopt the legal fiction created by the Arizona Supreme Court. I would argue this renders Article 11, Section 7 of no practical effect, which disregards long-standing rules of constitutional and statutory interpretation.
The founding fathers of Arizona were very clear in their intent to create a strong public education system and that no state money be spent on religious schools.