School Choice Case Heads to the Supreme Court

School Choice Case Heads to the Supreme Court

On Nov. 3, the Supreme Court heard arguments for a school choice case challenging the precedent set for the Establishment Clause—the separation of church and state.

On Nov. 3, the Supreme Court heard arguments for a school choice case challenging the precedent set for the Establishment Clause—the separation of church and state. Winn v. Arizona Christian School Tuition Organization disputes whether a tax credit program that directs public funds to private religious schools is constitutional. Since 1997, Arizona taxpayers have had the option to divert $500 of their owed taxes to school tuition organizations (STO) for student scholarships. The taxpayers can decide if their money is given to a religious or nonreligious STO.

Kathleen Winn and other Arizona taxpayers argue that because an overwhelming amount of money — more than 50 percent in 2009 — is given to religious schools, the program doesn't provide parents with neutral school choice options and violates the Establishment Clause. While the taxpayers argued the constitutionality of the program, the state and several STOs argued the mere legal standing of the taxpayers to challenge the use of tax relief in court.

In September the National School Boards Association (NSBA) filed an amicus brief, which adds additional information to the case, urging the Supreme Court to strike down the program. According to Naomi Gittins, deputy general counsel at NSBA, the Arizona program is unusual for a voucher program in that it doesn't specifically assist low-income students at low-performing schools.

"There's no income requirement," says Gittins. "If you look at most of the students who ended up getting scholarships, most were already attending private religious schools."

Gittins and her fellow opponents hope to see the court require Arizona to create a constitutional voucher program.

The precedent for the case, Zelman v. Simmons-Harris, upheld a voucher program in Cleveland because it was the parents—not the state—who decided whether to use the vouchers for religious schools; thus, the program did not violate the Establishment Clause. Likewise, supporters of Arizona's program affirm that it is the citizens determining where their money is directed.

The Obama administration joined with Arizona in defending the program. Solicitor General Neal Katyal argued that "not a cent, not a fraction of a cent" of taxpayers' money is used to fund this program unless the individual taxpayers themselves choose to fund it.

The case, which was filed in conjunction with Winn v. Arizona Department of Revenue, has left the Supreme Court divided and will most likely not be ruled on until the end of the Supreme Court's term in June 2011.


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