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By David A. Cortman posted on:
October 17, 2017

The United States Supreme Court has recently decided to hear a case about Arizona’s tuition tax credit program.  So what’s that all about and what does ADF have to do with it?  Glad you asked.

In 1997, the Arizona legislature enacted a statute that allows Arizona taxpayers to donate private funds to a “school tuition organization” (STO) of their choice (while at the same time also enacting a statute allowing a tax credit for donations to public schools).  The taxpayer may then claim a credit on their state income tax obligation for the amount donated, up to certain limits.

So what exactly are STOs?  STOs are private 501(c)(3) nonprofit organizations, just like many you may currently support.  Anyone can create one.  The law requires them to donate at least 90% of their income to children attending private schools.  Parents apply for scholarships from STOs.  And aside from a rule prohibiting STOs from giving all of their scholarships to students attending a single school, STOs are free to decide how best to distribute assistance.

ADF is representing an intervening party in the case, Arizona Christian School Tuition Organization (ACSTO), which, as you may have guessed, is one of the STOs participating in the program.  There are currently over 50 such STOs which provide scholarships to parents choosing to attend secular schools, religious schools, Montessoris, Jewish schools, or are aimed at helping specific groups of students such as those who are Native American, homeless or economically disadvantaged, special needs, etc.

There are, however, those who do not like school choice programs, such as this.  In February 2000, several Arizona taxpayers, with continuing assistance from the ACLU and its allies, filed a lawsuit in federal district court alleging that the tax credit violated the Establishment Clause (yes, the so-called separation of church and state) of the First Amendment.  They allege that a constitutional violation is somehow created because religious schools participate in the program along with secular schools, and that because some of the largest STOs, such as ACSTO, provide scholarships only to students attending religious schools, the government somehow favors religion (we’ll also talk more about the lack of government involvement in the actual operation of the program).

The Defendant and the intervenors ACSTO, and Arizona School Choice Trust, represented by the Institute for Justice, asked the district court to throw out the case.  They argued that even if all the facts alleged in the plaintiffs’ complaint were true, the tax credit did not violate the Establishment Clause; that the plaintiffs’ claims were already decided in previous litigation in the state court system, and the intervenors also argued that the plaintiffs lacked standing to sue.

What is standing?  Another good question.  Standing is a constitutional mandate that requires every plaintiff to have suffered in a way that is personal to them, and different from everyone else generally, in order to bring a lawsuit.  ACSTO has argued throughout the case that the plaintiffs here have no such personal injury.

The Supreme Court will hear arguments on November 3rd, and will decide whether the Constitution permits the government to give taxpayers a tax credit for contributions made to private non-profit organizations that support private K-12 schools, including religious ones. The Court will also decide whether someone, simply because he or she is a taxpayer, has standing to sue the state for creating such a program.  Stay tuned.

To learn more about what's at stake in the ACSTO v. Winn case, please visit our resource page, School Choice: A Parent’s Right under Attack.

David A. Cortman

David A. Cortman

Senior Counsel, Vice President of U.S. Litigation

David A. Cortman serves as senior counsel and vice president of U.S. litigation with Alliance Defending Freedom.

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