PHOENIX — The future of an Arizona school-choice program that gives scholarship money to Catholic and other children in Arizona’s private and religious schools will be decided by the U.S. Supreme Court when it returns to work this fall.

The high court announced on May 24 that it would hear the case Garriott v. Winn. The court will decide whether a law that gives Arizona residents a state tax credit for their donations to private scholarship agencies that support students in religious schools violates the establishment clause of the First Amendment of the U.S. Constitution.

The establishment clause bars the government from endorsing any particular church or religion.

Defenders of the law said that the tax-credit program is constitutional because the government does not collect or distribute any of the scholarship money. All the money that is collected is given by private individuals and distributed by private organizations.

Unconstitutional

A 2009 decision by the 9th U.S. Circuit Court of Appeals said that the tax credit was unconstitutional because it favored religious schools, which were the predominant recipients of the programs’ funds. Attorneys for the state of Arizona, joined by other interested parties, are asking the Supreme Court to reverse the lower court’s ruling.

In Arizona there are 55 “School Tuition Organizations” which in recent years have distributed more than $50 million to approximately 27,000 students at 370 different religious and other private schools in grades K-12.

The Arizona program started in 1997 and has survived numerous legal challenges from the American Civil Liberties Union which argue that the tax-credit program favors religious schools over other schools and therefore limits school choice.

Under the program any religious or private entity is free to establish a scholarship tuition organization in Arizona to collect and distribute funds.

The Catholic Church operates two such scholarship organizations that help send children to Catholic schools.

Ron Johnson, executive director of the Arizona Catholic Conference, calls school choice in the state “one of our largest priorities,” and said he was confident that the Supreme Court will uphold the Arizona tax-credit system and that the law was eminently fair. Johnson said that besides Catholic tuition organizations, there are Lutheran, Jewish, Christian and various other religious groups that benefit from the tax-credit system. No single religion is privileged, he said.

Johnson fears that five or six Catholic schools in the Phoenix Diocese might have to close if the tax-credit system is abolished. Despite the economic downturn that has strongly affected the Arizona economy, he said, Catholic schools have seen an uptick in enrollment thanks to the scholarship program.

Defenders of the tax-credit program say that the law has increased school choice and does not favor one religion over another. Tim Keller is the executive director of the Arizona chapter of the Institute for Justice, a legal firm that is defending Arizona’s school-choice program. Keller said he thinks the Supreme Court will uphold the Arizona law. “I think the Supreme Court took the case to reverse the 9th Circuit, which got it wrong on the facts and on the law,” Keller said.

Keller believes a favorable decision by the Supreme Court will “remove any constitutional clouds hanging over the school-choice program; they can absolutely clarify that school choice is constitutional,” Keller said.

Precedent

Keller based his belief on the precedent that the Supreme Court set in 2002 in the case of Zelman v. Simmons. In that case, the court ruled that vouchers in a Cleveland program are constitutional and do not violate the First Amendment, freedom of religion or the establishment clause.

“The Supreme Court has said that when a program is based genuinely on private choice and when it is completely neutral regarding religion, then it will pass constitutional muster,” Keller said. According to him, the Arizona law is completely neutral and gives no incentives to donate to one tuition organization over another.

Keller said that a favorable decision by the Supreme Court will show that the only thing standing in the way of school-choice programs around the country is politics, not the Constitution. In his view, the Institute for Justice and others defending the law are ultimately doing it for the sake of the students.

“It is the kids who have benefited from the program,” he said. “They have the opportunity to get the education they deserve.”

Jesuit Father Matthew Gamber writes from Chicago.