ROBINSON: An appealing school choice

OPINION:

Most people know when the U.S. Supreme Court issues a ruling, it is considered the final say for that case. Unfortunately, the U.S. Court of Appeals for the Ninth Circuit has tried to overstep the Supreme Court in no less than four cases dealing with parental choice in education.

In direct conflict with Supreme Court precedent and to the detriment of more than 28,000 Arizona schoolchildren, the Ninth Circuit recently declared that Arizona’s educational tax credit program is unconstitutional. On May 20, the Supreme Court can correct the Ninth Circuit, and there are compelling reasons for it to do so.

Phoenix resident Glenn Dennard is an inner-city pastor and father. He and his wife, Rhonda, used to make a long drive each day to save their oldest daughter from the failing school district they lived in. Yet, they were still not satisfied. Through the Arizona tax credit program, they secured scholarships that ensured access to a quality, individualized education for each of their five children. If the Supreme Court does not intervene in this case, however, the Dennard family may be forced to move in order to find a better education for their children.

The Establishment Clause requires government to stay neutral with regard to religion, meaning it cannot pass laws that prefer one religion over another, or religion over nonreligion, or, as the American Civil Liberties Union (ACLU) advocates, nonreligion over religion. The ACLU is challenging Arizona’s tax credit because it allows taxpayers to claim a dollar-for-dollar tax credit for donations to scholarship-granting charities, including religiously affiliated organizations. These charities, known as School Tuition Organizations (STOs), give scholarships to families to send their children to the private school of their choice.

But the tax credit is entirely religiously neutral; it neither favors nor discriminates against people who select religious school options. Private actors - not government bureaucrats - decide which charities receive donations to fund the private school scholarships. As Judge Diarmuid O’Scannlain said in a powerful dissent to the Ninth Circuit’s decision, the government is at least four steps removed from these charities. A private citizen must first create an STO, and then they must decide whether to provide scholarships to religious schools. This is followed by the taxpayer’s decision to donate to that STO. Finally, a parent must then decide to apply for a scholarship for their child. Four separate choices by three private citizens do not equal government action.

Moreover, the Ninth Circuit decision is in direct conflict with an Arizona Supreme Court decision upholding the program under the Establishment Clause. The Arizona Supreme Court found that the program aided a “broad spectrum of citizens” and that it “allow[ed] a wide range of private choices.” Indeed, there are 55 such STOs, at least 30 of which have no obvious religious affiliation.

Arizona leads the nation in offering educational choices to families. The overall breadth of choice is an important factor that the U.S. Supreme Court should look at in determining whether the program being challenged coerces parents to choose religious schools. Arizona has more than 10 percent of the nation’s charter schools, in addition to magnet schools, homeschooling and an open-enrollment policy.

Finally, should the Ninth Circuit’s decision stand, a cloud of uncertainty would be cast over similar tax credit programs in other states. The decision could jeopardize thousands of scholarships, forcing children nationwide out of their current private schools.

Already-full public schools could be forced to enroll thousands of new students in the next few years, further burdening an already weakened system. Children who are succeeding in their current schools could be uprooted and their educational futures placed in jeopardy.

The Supreme Court should reverse the Ninth Circuit’s decision so parents can rest assured their children’s educational future is secure. After all, the Supreme Court has already ruled parents, not politicians, know what is best for their own children. The Ninth Circuit’s decision to strike down Arizona’s school voucher program has harmed the most vulnerable (in this case, Arizona school kids). The Supreme Court once again can step in and come to the aid of thousands of parents who want to provide a better education for their children.

Eric Robinson is a law clerk at the Institute for Justice, which is defending Arizona’s tuition tax credit program.