ACLJ Urges Supreme Court to Back AZ Tuition Tax Credit Program

August 6, 2010

(Washington, DC) The American Center for Law and Justice (ACLJ) today filed an amicus brief in the U.S. Supreme Court in defense of Arizonas tuition tax credit program.  The ACLJ brief argues that a lawsuit challenging the program should be dismissed because those bringing the suit do not have legal standing to challenge the tax credits in this case.

Strict church-state separationist taxpayers in Arizona are challenging the program under the Establishment Clause of the First Amendment. The U.S. Court of Appeals for the Ninth Circuit last year ruled against the tax credits, but the Supreme Court has agreed to review the case which is entitled Arizona Christian School Tuition Organization v. Winn.

The Arizona tuition tax credit program has been a huge boon to school choice, said Jay Sekulow, Chief Counsel of the ACLJ.  The program has grown every year, and the interest from parents is phenomenal. This is exactly the sort of program of private choice that enables parents to choose the school they think best suits their children.  Meanwhile the state leaves all the important decisions where to donate, which schools to attend, which schools to support with scholarships to private choice.

Under the Arizona tuition tax credit statute, individuals who contribute up to $500 to Student Tuition Organizations (STOs) get to take a credit for the amount of the contribution on their state tax return. The STOs in turn award scholarships to students to defray the cost of attending private schools. To qualify for the program, STOs must be tax exempt entities that distribute at least 90 percent of their revenue in scholarships. STOs must offer scholarships to at least two different private schools.

The Supreme Court has agreed to review two issues in the case: whether the tax credit program violates the Establishment Clause, and whether the separationist taxpayers could even bring the challenge in the first place.

The ACLJ amicus brief addresses both issues but focuses primarily on the question of legal standing to sue.

Regarding the constitutionality of the tax credit program, the ACLJ brief says that if the Supreme Court reaches the issue, it should reverse the Ninth Circuit in short order. The separationist taxpayers, the brief notes, do not challenge the constitutionality of the tax credit statute itself. Rather, they challenge only the way the statute has been implemented. But that implementation, as the ACLJ brief points out, has been carried out by taxpayers, parents, and STOs all private entities that are not limited by the Establishment Clause. The absence of government involvement in these decisions, the ACLJ brief explains, dooms the separationists challenge.

Nevertheless, the ACLJ brief continues, the Supreme Court should not even reach this question because the taxpayer challengers do not have standing to sue. Instead, the case should have been dismissed in the trial court.

 The Supreme Court has long said that taxpayers do not have an automatic ticket to march into court and challenge any government program they object to, said Sekulow. The separationist taxpayers here claim a special right to sue because they are invoking the Establishment Clause. Thats not fair, and thats not what the law says.

The ACLJs friend-of-the-court brief traces the history of the Supreme Courts cases on taxpayer standing and argues that, for the separationists to prevail here, the Court would have to depart from past precedent in ways that run contrary to the Courts teachings.

You can read the ACLJs brief here.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.