Published May 24, 2010
PHOENIX – PHOENIX (AP) — The U.S. Supreme Court will consider ending a lawsuit that challenges Arizona's tax breaks for donations for thousands of private school scholarships.
The Washington-based court on Monday said it will hear two appeals filed by the state and supporters of the 13-year-old program that provides dollar-for-dollar state income tax breaks for donations to school tuition organizations.
The action "is terrific news for the thousands of families who desperately need scholarship assistance to send their children to the school of their choice," said Tim Keller, executive director of the Institute for Justice's Arizona chapter.
The institute was one of several groups defending the program.
A lawyer for the challengers said he hopes the justices' action doesn't mean the Supreme Court intends to open the door for broad state funding of religious instruction.
"I hope they didn't take this case to say that," said attorney Paul Bender.
The American Civil Liberties Union and others challenged the program as unconstitutional because religious organizations award most of the scholarships and require children to enroll in religious schools. The suit says the program amounts to an unconstitutional state endorsement of religion.
The Arizona Supreme Court previously upheld the constitutionality of the 1997 law as written, but the current case being considered by federal courts challenges how the program has been implemented.
A U.S. District Court judge dismissed the current case, but the federal appeals court in San Francisco last year ruled that the lawsuit could proceed. In that ruling, a 9th U.S. Circuit Court of Appeals panel said the program could be unconstitutional because parents seeking scholarships didn't have a realistic range of education choices for students to attend nonreligious schools.
In 2002, the U.S. Supreme Court upheld school voucher programs. Supporters of the Arizona aid program say it is no different from the Cleveland program upheld in 2002 because in both cases, government does not direct any money to religious schools.
The court will hear arguments in the fall on the two cases it consolidated into one appeal.
The state Department of Revenue said in an April report that 73,391 donations totaling $50.8 million were reported for 2009. School tuition organization groups reported providing 27,582 scholarships totaling $52.1 million for students attending 370 private schools in the same year, the department said.
Other states with versions of tuition tax credit programs include Florida, Georgia, Iowa, Pennsylvania and Rhode Island.
Lawrence C. Mohrweis, a Northern Arizona University accounting professor who has studied tuition tax credit programs, said those states other than Florida share features with Arizona's program that could make them vulnerable to constitutional challenges.
The two cases being consolidated into one appeal are Arizona Christian School Tuition Organization v. Winn, 09-987, and Garriott v. Winn, 09-991.
Associated Press writer Mark Sherman contributed from Washington.