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School Choice Program Prevails. Kids & Parents Ultimately Win

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

Earlier today (April 4th), the Supreme Court of the United States handed down an extremely important decision in ADF’s case, ACSTO v Winn.  Although the Court doesn’t always get it right, at least in my opinion, it certainly did in this case.  And it’s not simply because it was an ADF case.  It was because of the important issues that were at stake; such as, whether the ACLU or its clients can even bring a lawsuit over someone else’s donations (like your tithes) to non-profit groups (like your church), whether those donations violate the so-called separation of church and state simply because some of them go to religious groups, or the underlying issue of whether all of our money belongs to the government and only by its “grace” does it not tax it all.  And even though these issues came to the Court wrapped in the context of school choice, which is an important issue itself, these are tremendously important issues in all contexts.

For those of you not familiar with the case, the case centers around an ACLU challenge to an Arizona school choice program, brought on behalf of a few taxpayers who were offended by the fact that private religious schools--along with all secular schools--were permitted to participate in the program.  The state of Arizona is one of the nation’s leaders when it comes to school choice.  Educational options currently include traditional public schools, charter schools, virtual or on-line schools, free out of district schools, home schools, and private schools.  As part of these choices, the legislature enacted a law allowing donations to be made directly to public schools, and indirectly to private schools through non-profit 501(c)(3) organizations (called STOs or School Tuition Organizations).  Anyone can set up an STO.  Any STO can support any group of schools.  Any citizen can make a donation to any STO.  And any taxpayer may take a state tax credit up to a certain limit for the donation.

Sounds like a good plan, so what was the problem?  In my opinion there were at least two fundamental problems that the ACLU had with this program. The first is that the ACLU doesn’t like that religious groups get to participate in government programs--even on a neutral basis.  The second is that the ACLU is no friend of school choice.

As to the first problem, the ACLU claims that the program is not “neutral” because more donations are sent to religious schools.  This, they claim, skews the choices of parents toward sending their kids to religious schools.  And this allegedly violates the Establishment Clause because the government is the one that is supposedly favoring religious schools by enacting the tax credit.  Got that?  If it sounds convoluted and seems like tortured logic that is because it is.  There are so many obvious flaws in this argument that it is almost difficult to know where to begin.  But I said “almost,” so here I go.  As to neutrality, the constitution requires that the government program be neutral, not the choices of Americans in utilizing that program.  Even so, the program allows anyone to donate to any public school directly, or to any private school through an 501(c)(3) STO.  Anyone can set up an STO, and that STO can support any group of schools.  Sounds neutral to me.   What about more money going to religious STOs and schools?  A few responses.  Most logically (and supported by simple math), there are more religious private schools than non-religious ones (religious groups tend to be the ones who open private schools).  Hence, the part about more money going to religious schools.  And not a dime can go to a religious school unless a parent chooses for his child to attend that school and apply for a scholarship.  And isn’t this program supposed to be about parental choice in education?  At least I thought it was.  A bit more math.  Even though there are more private religious schools, as a matter of percentages there is more money going to private secular schools than religious ones.

And then there’s the whole “this is the government’s money” argument that the ACLU makes.  Talk about far-reaching and dangerous.  The ACLU argues that because a tax credit is given by the government for the donation, the money is really the government’s to begin with (even at oral argument before the Court, several Justices recognized that this was the essence of the ACLU’s claims).  Let’s analyze that claim for a minute.  So, if you donate to your church or other charitable organization and take a charitable contribution deduction on your tax return, does that mean that the money you donated was really the government’s and not your own?  Because as a constitutional matter, there is no difference between 30 cents on a dollar tax forgiveness for a charitable deduction (depending on your tax bracket) and a 100 cents on a dollar tax forgiveness for the tax credit.  Let’s look at where the ACLU’s logic extends.  If every dollar that the government chooses NOT to collect from us in taxes is really the government’s money, where does that stop (or start)?  To put it plain and simple, it is a communistic/ socialistic theory in its purest form.  According to the ACLU, it all belongs to the government—even the portion that they allow us to keep.  Talk about elevating the government to a god-like status.  But providentially, the Court rightly dismissed that argument by stating, “When Arizona taxpayers choose to contribute to STO’s, they spend their own money, not money the State has collected from respondents or from other taxpayers…. Private bank accounts cannot be equated with the Arizona State Treasury.”

And quickly to that whole school choice issue.  The ACLU is obviously a leftist organization, and those on the far left don’t like parents to be able to choose where their own children go to school.  These leftist groups, also including the powerful NEA (National Education Association)--which filed a brief in the case supporting the ACLU--enjoy a stranglehold on our public schools.  They control billions of dollars (including forced union dues--yes, it’s that whole union thing again) and thereby have financial control of the educational system.  And they get to impose what is taught to our children, much of which is far-left ideology.  And how are these groups doing running our schools?  Let’s see, nearly a 30% high school dropout rate, a U.S. ranking of 25th out of 30 nations in math scores, and a staggering amount of crime in public schools.  A failing grade by any standard.  But Arizona’s program, like so many others around the country, is trying to change that by empowering parents to have more realistic options of where to educate their children.  And that threatens the left’s control, which they will obviously oppose at any cost.

But the Supreme Court saw through all of that rhetoric and held that the ACLU’s clients have no right to come to court in the first place because they have no legal standing.  In simple terms, they have no injury to complain of.  The Court agreed with ADF’s argument that the money donated is private money—not the government’s—and that someone else’s donation creates no legal injury to ACLU’s clients.  The Court wisely rejected the ACLU’s--and their allies’--extreme arguments.  And which groups filed briefs in the case in support of the ACLU?  Looks like a veritable cornucopia of groups on the far left:  National Education Association, Americans United for Separation of Church and State, American Jewish Committee, The Anti-Defamation League, American Humanist Association, Atheist Alliance International, Council for Secular Humanism, Freedom from Religion Foundation, Institute for Humanist Studies, Secular Coalition for America, Secular Student Alliance, and Unitarian Universalist Association.

So while the Court had no need to reach the question about whether the program was consistent with the Establishment Clause, which ADF believes it was, it nevertheless issued an extremely important ruling that protects school choice programs, parental rights, and charitable giving, while at the same time limiting the ability of the ACLU and its cronies to complain about such programs.  But when the next case comes up where the ACLU again challenges a school choice program, and it certainly will—ADF and its allies will be there once again to fight on behalf of our families and our children’s educational future.

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To learn more about how ADF defends Religious Freedom in Education, visit the ADF Public Schools page.


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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