- The Washington Times - Thursday, March 3, 2011

How many U.S. Supreme Court cases risk eliminating a child’s ability to get a quality education with completely private dollars? Not many, but if a case that will be decided by that court any day now goes the wrong way, that’s precisely what it will mean for many children - and for no good reason.

The Arizona scholarship tax credit legislation, enacted in 1997, has enabled tens of thousands of children to go to the best possible school to meet their educational needs - and all with private funds. Other states have similar programs, but the lawsuit pending before the high court puts many of those programs at risk.

The Arizona program allows state taxpayers to donate to their choice of more than 50 private 501(c)(3) organizations called “school tuition organizations” (STO) and receive a tax credit for it. The STO then distributes those private donations to private schools that parents choose for their children to attend. Families struggling in a tough economy have a shot at sending their children to the school of their choice, no public monies are used, and the economy gets a boost from the additional economic activity, not to mention that the state saves money by having fewer public school students.

For many parents, the elimination of such a tax credit would eliminate their ability to send their children to the right school. Not surprisingly, the American Civil Liberties Union (ACLU) filed suit to tear down the program anyway. Its objections to the program simply don’t hold water.

Some of the private schools participating in the program are religious schools, and that bothers the ACLU. But this is not a constitutional problem because the schools don’t receive any public funds. More religious schools have chosen to participate in the program than nonreligious ones, which is not surprising because that state contains more religious private schools than nonreligious ones, but the program is open to anyone. The law allows STOs to be formed for any group of private schools - religious or nonreligious - so complete equality of opportunity is specifically designed into the law.

The ACLU’s only claim of injury to its clients - a few people who just don’t like the program - is that the state receives less money because of the tax credit. But is that really true? As the Supreme Court has recognized, the purpose behind many tax breaks is to spur economic activity, not harm it. When that happens, the state makes more money in taxes. Arizona’s legislators knew this, too. The tax credits often are more than offset by other revenue creation, resulting in higher tax revenue for the state.

In this case, revenue creation can take the form of new jobs for administrators, teachers and workers who build and expand private school facilities, the purchase of additional textbooks and supplies and other economic transactions. At the same time, state expenditures go down. For each student who attends a private school rather than a public school, the state saves about $10,000 per year - and possibly more.

All of this raises the question of the ACLU’s grounds for filing suit in the first place. The group has not demonstrated that its clients have been harmed by Arizona’s tax credit program, which is the basis for a court challenge.

The ACLU cannot prove that the state receives less money, and even if that were true, it cannot show that its clients have been harmed personally. Courts don’t grant standing to a lawsuit plaintiff simply because of concern over an issue. By the same token, should the ACLU be allowed to file suit to prevent worshippers from tithing to their church or favorite charity? Of course not. What grounds would it have? None, and that’s exactly the point.

The organization says it isn’t attempting to halt church donations because they are tax deductions, while the Arizona program involves tax credits. If the ACLU doesn’t have any business suing over tithes, then it ought not to contest tax credits, either.

Striking down Arizona’s scholarship tuition-tax-credit program would result in fewer children getting the best education possible, period. Because the ruling will come from the highest court in the land, similar programs across the nation also would be affected. The Supreme Court should uphold Arizona’s program and thereby uphold equal opportunity in education for American families.

David Cortman is senior counsel with the Alliance Defense Fund (telladf.org), which represents the Arizona Christian School Tuition Organization.

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