Supreme Court Hears ACLU Case Challenging Discriminatory Arizona School Tuition Program

Tax-Funded Tuition Disbursement Organizations Discriminate Based On Religion, Says ACLU

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WASHINGTON – The U.S. Supreme Court heard arguments today in an American Civil Liberties Union and ACLU of Arizona case challenging an Arizona tax credit-funded school tuition program under which most of the state-funded, private school scholarships are unconstitutionally awarded on a religiously discriminatory basis.

"We are hopeful that the Court will see that this is not a program of private taxpayer charity, but a government spending program that supports religious discrimination," said Paul Bender, lead counsel, who argued the case for the plaintiffs. "By appointing religious organizations to disburse scholarships that are funded completely with tax revenues, and allowing those organizations to grant scholarships based on the religion of applicants, the state is unconstitutionally engaging in religious discrimination."

Under the challenged program, Arizona scholarships are awarded by School Tuition Organizations (STOs). These organizations are certified and closely supervised by the state and financed exclusively by state income tax revenues. Taxpayers can direct their tax payments to the STOs for a 100 percent tax credit, rather than paying the Department of Revenue, essentially costing the taxpayers nothing. The cost is borne entirely by the state's general fund. As one of the STOs describes the program, "Imagine giving [charity] with someone else's money…stop imagining. Thanks to Arizona tax laws you can."

Since its passage in 1997, the tuition tax credit scheme has been dominated by religious discrimination. More than half of over $50 million awarded by STOs in 2009, for example, was awarded by STOs that required students to attend religious schools in order to receive scholarships. The Arizona Christian School Tuition Organization, a petitioner in this case, states that its goal is "to further Christian education by effectively implementing the provisions of [the program] for the benefit of Christian school students and their families."

"Arizona has created a complex statutory scheme, but the constitutional principles are simple: taxpayer funds cannot be awarded on the basis of religious criteria," said Steven R. Shapiro, Legal Director of the ACLU.

The Arizona program differs from the Cleveland voucher program that was upheld by the Court in 2002. That program provided vouchers to help inner-city students from low-income families escape a failed public school system. The vouchers in that program were not distributed based on the applicants' beliefs and there was no stipulation as to where they could attend school.

"The decision to award scholarships in Arizona rests entirely in the hands of taxpayer-funded, state-sanctioned organizations, the majority of which are religious in nature," said Daniel Mach, Director of the ACLU Program on Freedom of Religion and Belief. "Because the Arizona program does not award scholarships on a religiously neutral basis, and denies parents free choice in determining where the scholarships can be used, this is completely different from other voucher schemes. The government should have no role in supporting programs that play favorites when it comes to religion."

The case also addresses whether the Arizona taxpayers who are the plaintiffs in the case have standing to challenge the program.

"Arizona taxpayers have an absolute right to challenge a program that diverts much-needed state funds from tax revenue to private religious schools on the basis of religious discrimination," said Dan Pochoda, Legal Director of the ACLU of Arizona. "The state cannot use taxpayer money to support organizations that are not open to children of all faiths."

Attorneys on the case, Arizona Christian School Tuition Organization v. Winn, include Bender, a law professor at Arizona State University's law school and former U.S. Deputy Solicitor General; Shapiro and Mach of the ACLU; Pochoda of the ACLU of Arizona; and Isabel M. Humphrey of the Phoenix law firm Hunter, Humphrey and Yavitz, PLC.

For more information on this case, please visit: www.aclu.org/religion-belief/arizona-christian-school-tuition-organization-v-winn