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Are School Tuition Organizations Constitutional?

The U.S. Supreme Court will consider this term whether school tuition organizations that were set up in Arizona in 1997 pass constitutional muster. The law permits residents of the state to contribute up to $500 that they would otherwise pay in taxes to a nonprofit school tuition organization. In turn, the STOs give scholarships to students to attend non-public schools. The only two conditions are that STOs can't award the scholarships to one school, and they must take financial need into consideration.

The U.S. Court of Appeals for the 9th Circuit ruled in favor of taxpayers who challenged the program on the basis that the donations are gifts from the state because they are credited against state tax obligations. In other words, the lower court saw STOs as thinly veiled end runs around the wall separating church and state.

It's hard to know how the Supreme Court will decide the case. But if the past is any guide, I think it will rule in favor of STOs. In Zelman v. Simmons-Harris, the high court in 2002 upheld a school voucher program in Cleveland, saying that parents, rather than the state, decided how to use the vouchers. It mattered not a whit to the high court that 96 percent of parents in Cleveland used their vouchers for Catholic private schools.

By the same token, it is parents - not the state - once again in Arizona who decide whether they should use their tax credit for a religious or non-religious STO. Moreover, because none of the plaintiff's money is at risk, they can't argue that they have what is known in law as "standing." If this is the case, then plaintiffs may be on legal thin ice to sue.

Nevertheless, I doubt that the issue will disappear no matter what the Supreme Court decides. Parental choice is inevitable. The only imponderable is what form it will take. All the more reason to make traditional neighborhood schools so attractive to parents that they will have no incentive to look elsewhere.

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The opinions expressed in Walt Gardner's Reality Check are strictly those of the author(s) and do not reflect the opinions or endorsement of Editorial Projects in Education, or any of its publications.

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