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School Choice on Trial
From The Wall Street Journal

School choice plans are proliferating around the nation, and today the Supreme Court will hear a case that could stop them cold on dubious legal grounds. In Arizona Christian School Tuition Organization v. Winn, the question is whether a scholarship tax credit program that has operated in Arizona since 1997 violates the First Amendment's clause that "Congress shall make no law respecting an establishment of religion."

Arizonans can receive a tax credit of $500 ($1,000 for couples filing jointly) for donations they make to so-called school tuition organizations, which operate as charities and provide scholarships to private schools. Arizona parents may then apply to use the tax-credit funded scholarships for their children at either a secular or religious school.

As ever, the American Civil Liberties Union and other rigid secularists argue that this is unconstitutional support for religion because most parents seek out religiously affiliated programs. A three-judge panel on the oft-overturned Ninth Circuit Court of Appeals bought that argument, reversing a lower court that had upheld the state tax credits.

However, even the Arizona program's critics concede that every element is religiously neutral and a matter of private parental choice. The state plays only a minor role in administering the tax credits, no role in selecting the donors. While the tax credits reduce state tax revenue, the resulting scholarships also reduce the state's expense on public education.

In a strongly worded dissent from the Ninth Circuit's decision not to rehear the case en banc, Judge Diarmuid O'Scannlain, joined by seven other judges, said this didn't remotely qualify as a problematic state action advancing religion. The decision by the three-judge panel, he wrote, "casts a pall over comparable educational tax-credit schemes" and "jeopardiz(es) the educational opportunities of hundreds of thousands of children nationwide."

The relevant Supreme Court doctrine here is whether the decision of where to send the money is a matter of private choice or government coercion. In 2002's Zelman v. Simmons-Harris, the Court ruled in support of a Cleveland voucher program in which the state issued checks directly to parents to spend in private schools. Although some 95% of the Ohio parents chose religious schools for their children, the Court ruled the program constitutional because the religious component was the result of private decisions.

Last year in Arizona, the choice program provided 27,000 scholarships to 373 secular and religious private schools, overwhelmingly for children who could not otherwise afford to attend. Until recently, scholarship eligibility was not means-tested, but according to a study by the Pacific Research Institute, 67% of all scholarship recipients would qualify under a similar program that did measure families' financial situations.

As a legal matter, the Arizona case isn't a close call. The fact that it is being heard at all reflects the liberal dogmatism of the Ninth Circuit even in the face of clear Supreme Court precedent, and we hope the Justices knock this one clear out of the ballpark and all the way back to San Francisco.

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