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High Court's ruling bars the ACLU from using Establishment Clause extremism to challenge the state's tuition tax credit plan on religious grounds. It is a bold step in the right direction.

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Supreme Court’s Wise Decision Favors Arizona School Choice

High Court’s ruling bars the ACLU from using Establishment Clause extremism to challenge the state’s tuition tax credit plan on religious grounds. It is a bold step in the right direction.

The Supreme Court’s decision to throw out the challenge to Arizona’s tuition tax credit plan gives needed breathing room to that state’s emerging and innovative school-choice system.  It also imposes common-sense requirements on opponents of school choice, including the American Civil Liberties Union, which now must come to court with people who have been actually harmed by the tax credit plan, and have more than just generalized complaints against it based on extreme notions of “separation of church and state.”

Arizona’s tuition tax credit program is just one part of the state’s bold school-choice plan to empower parents with the opportunity to select the best schools for  their children.  Arizona families can send their children to a vast array of charter schools that specialize in everything from drama to the classics to math and science.  Home schooling flourishes with minimal state regulation, and home-school students can participate in extracurricular offerings, such as band or sports, at nearby public schools.

And Arizona helps parents who believe private schools are best for their children by offering a state income tax credit to individuals who voluntarily donate to school tuition organizations that award scholarships to students attending private schools.  But the ACLU objected to this because the law allowed the organizations to choose to give scholarships to students attending religious schools as well as other private schools.  The ACLU sued, and won in a lower court before the Supreme Court threw out its lawsuit.  The reason?  The ACLU’s clients suffered no injury from the Arizona plan.

Under Article III of the Constitution, everyone coming to federal court must show that the government action they challenge has harmed them directly.  Generally, taxpayers cannot show any specific harm inflicted on them by a government program, so courts dismiss their lawsuits. 

But back in the 1960s, the freewheeling Warren Court granted an exception to allow taxpayers to bring lawsuits based on the First Amendment’s Establishment Clause.  Since then, the ACLU and its secularist allies have rounded up taxpayers who oppose some government program that does not ban religious groups’ participation, then filed lawsuits claiming that the Establishment Clause requires those programs to shut out the religious groups.

However, those lawsuits have caused the Supreme Court to establish a more permissive set of standards than the harsh exclusions demanded by the ACLU.  First, a general program that is open to or otherwise benefits everyone, including religious groups, does not violate the Establishment Clause.  The fire department extinguishing a blaze at the Buddhist monastery is not government aid to religion.  A Jewish synagogue connecting to the city’s sewer and water mains is not a government subsidy of religion.  Everyone gets the same benefit.

The second principle is that when taxpayer money flows to a religious group because of the independent and voluntary decisions of individuals and not the government, there is no Establishment Clause violation.  The fact that a senior citizen in North Dakota gives part of her Social Security check to her church does not mean the entire Social Security system violates the Constitution.

Lawmakers in Arizona believe that school choice  improves education, so they studied the relevant Supreme Court decisions and fashioned a tuition tax credit plan that complies with the Constitution.  However, to the ACLU and its allies, all school choice plans violate the Establishment Clause if religious schools can participate, and it makes no difference that the plans comply with the Supreme Court’s rulings.

The ACLU’s cartoonish and ominous depiction of the Arizona system inaccurately paints it as an underhanded method of funneling government money to religious schools.  But there is a clear, obvious, nonreligious public policy reason for state lawmakers to approve the tuition tax credit plan:  It helps Arizona children receive the best education, tailored just for them, at a fraction of the state’s cost of educating them at public schools.

If the ACLU’s lawsuit against the tax credit plan had succeeded, then many students could no longer afford private education, and would flood back to the public schools, dumping huge additional costs on the state.  I wonder how the ACLU’s tax-conscious plaintiffs would have felt about that.

Written By

Jordan Lorence is senior counsel with the Alliance Defense Fund, which represented the Arizona Christian School Tuition Organization before the U.S. Supreme Court.

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