Is Arizona Channeling State Money to Religious Schools?

Nov. 2, 2010 -- Pastor Glenn R. Dennard and his wife Rhonda have six children and live in a neighborhood in South Phoenix, Ariz. with poorly performing public schools.

But since 1998, they have been taking advantage of an Arizona law aimed at encouraging greater educational choice for disadvantaged elementary school children. Through the program, five of the Dennard children have been able to attend private schools. The eldest two have moved on to college.

The 1997 law allows state residents to receive a tax credit for contributions to nonprofit organizations that in turn give scholarships to public school students who want to attend private schools.

"When I learned about the program," said Pastor Dennard, "I said, 'what a blessing'; an organization with the sole purpose of allowing people who wouldn't ordinarily have access to the best schools, access to the best."

However, the law has come under intense criticism from some Arizona taxpayers who say that in practice, most of the School Tuition Organizations (STO's) receiving the funds are religious.

On Wednesday the Supreme Court will hear a challenge from the taxpayers who argue that the law is a violation of the Establishment clause of the Constitution prohibiting government actions from favoring one religion over another. The taxpayers argue that the policy funnels state money to religious schools.

The American Civil Liberties Union, which is representing the taxpayers, argues in court papers that the policy amounts to a "program in which the majority of state aid is given on the basis of religion to relatively very few students, most of whom are chosen by religious organizations."

Supporters of the tax policy, including the state of Arizona and one of the STOs, the Arizona Christian Tuition Organization, counter that the law is constitutional because the government steps out of the equation when the money is disbursed. From there it becomes an issue of private choice of the parent.

Lawyers for the state of Arizona write in court papers that it is a neutral government program.

In 2002, the Supreme Court upheld a school voucher plan that permitted states to spend state funds to pay for religious elementary or secondary school education , so long as the choice of schools was left to the parents. Supporters of Arizona's tax plan believe the Court will use similar grounds to uphold the tax credit plan.

But the ACLU argues that the voucher case is significantly different from Arizona's tax credit law because of the religious nature of the STO's who serve as an intermediary between the government and parents in selecting scholarship recipients.

Professor Ira C. Lupu ,an expert on church and state issues at George Washington University Law School, says that in Arizona, the donors of the money and the scholarship granting organization are extra intermediaries. "You have private organizations, not schools, directing the flow of money."

Even before the Supreme Court addresses the merits of the case, it will have to decide whether the taxpayers have the legal right to bring the suit in the first place. If the Court finds the taxpayers aren't sufficiently harmed by the policy, it may never reach the constitutional merits of the case.

If arguments are heard, the case should be decided by early next year.