Sweet Victory in the Peach State

February 8, 2016


Image: Tim Keller of the Institute for Justice, right, wields his legal fiddle to defend school choice.

(Guest Post by Jason Bedrick)

Great news from the Peach State, where a superior court judge dismissed a constitutional challenge to Georgia’s scholarship tax credit (STC) law. The Institute for Justice intervened to defend the law on behalf of five tax-credit scholarship recipients. Currently, more than 13,000 Georgia students receive tax-credit scholarships to attend the schools of their choice.

School choice opponents alleged that the STC violated the state constitution’s historically anti-Catholic Blaine Amendment, which prohibits the state from publicly funding religious schools, among other provisions. However, citing precedent from the U.S. Supreme Court and several state supreme courts, Judge Kimberly M. Esmond Adams held that tax-credit eligible donations constitute private funds, not public expenditures:

Courts that have already considered whether a tax credit is an expenditure of public revenue have answered this question in the negative. Of particular importance is Arizona Christian Sch. Tuition Org. v. Winn, 131 S. Ct. 1436 (2011), where the United States Supreme Court found that taxpayers lacked standing to challenge a scholarship tax credit program under the Establishment Clause of the United States Constitution that was almost identical to the Program at issue here. Like Georgia’s Program, the Arizona program provided that taxpayers could receive a credit for donations made to independent scholarship organizations which then provided scholarships for students to attend private schools. […] Plaintiffs have not presented any arguments for why this Court should not follow this persuasive authority.

The fact that tax-credit eligible donations are private funds is the primary reason that STC laws have a perfect track record in the state courts thus far. It’s also why tax credits are the most liberty-friendly means of financing educational choice, as the late, great Andrew J. Coulson never tired of reminding us (much to Greg’s chagrin). In response to the U.S. Supreme Court’s similar ruling five years ago, Andrew wrote:

The rationale underlying the Court’s ruling highlights a unique advantage that tax credits have over other ways of funding education: they expand both freedom of choice for parents and freedom of conscience for taxpayers.

Plaintiffs had argued that cutting a person’s taxes is equivalent to spending government money, and so taxpayers were being compelled to support religion when credits were used for donations to religious [scholarship organizations]. The Court said, “that is incorrect.”

Unlike the funding of public schools, which is compulsory for all taxpayers, participation in [a] tax credit program is voluntary. If an individual chooses not to donate to [a scholarship organization], his taxes are collected just as they have always been, and those dollars cannot be used for any sectarian purpose. Furthermore, if a taxpayer does choose to make a donation, he is free to select the STO most consistent with his own values. […]

There are other ways of funding universal choice in education, but only tax credits (either for parent’s own education expenses or for donations to [scholarship organizations]) respect the freedom of conscience of taxpayers as well as the freedom of choice of parents. If we truly wish our schools to help build strong, harmonious communities, there is no better way than to adopt such programs at the state level on a grand scale.

The opponents of educational choice are likely to appeal the judge’s decision. Let us hope their appeal meets the same fate as all of its predecessors.

Governor Brewer signs ESA expansion

June 21, 2013

(Guest Post by Matthew Ladner)

Arizona Governor Jan Brewer signed SB 1363 yesterday, incorporating significant improvements into Arizona’s Empowerment Scholarship Account program into law. The ESA program will increase the minimum funding amount for participating students and will make eligible kindergarten students able to participate without prior public school attendance. Program eligibility remains otherwise unchanged (special needs and beginning this fall students attending D/F rated schools or districts, foster care children and the children of active duty military parents.)

Arizona had an incredibly difficult legislative session in 2013 so we are incredibly grateful to Governor Brewer and our stalwart legislative champions who got this bill over goal line.  Governor Brewer continues to build an impressive K-12 legacy and I remain hopeful that we will be able to pinpoint her administration as a turning point for public school performance in future NAEP data. Democratic Senator Barbara McGuire deserves special praise for doing right by the kids by offering a motion to reconsider on the bill after it had failed by a single vote on the Senate floor on the last day of session.  This action required real moral courage and it is clear that Senator McGuire has the quality in spades.

The lobby team led by Sydney Hay of the American Federation for Children and Deb Gullett of A+ Arizona have earned spots in the School Choice Hall of Fame, and the program continues to benefit from the outstanding work of the Goldwater Institute locally and the Friedman Foundation and HCREO nationally. In addition, Goldwater and IJ have been doing a great job in defending the program in court. This victory was a team effort and there are many more people both inside and outside of government who have helped to bring the program along. I am proud and thankful for all of you.

An Arizona Department of Education official recently told me that participating parents literally weep in meeting in expressing the depth of their gratitude for this program. This is a far greater reward than any thanks that I can offer. The ESA team has created a growing experiment in freedom-thank you all and keep up the good work!


The Way of the (Near) Future: Arizona Legislature Passes ESA choice bill

April 8, 2011

(Guest Post by Matthew Ladner)

Yesterday the Arizona Senate gave the final passage for SB 1553, Arizona Empowerment Scholarship Accounts, the nation’s first system of public contributions to education savings accounts as a choice mechanism, 21 to 7.  The bill is now on Governor Brewer’s desk. Designed to replace Arizona’s special needs voucher program lost to our Blaine amendment, the ESA program will allow the parents of a child with a disability to withdraw their child from a public district or charter school, and receive a payment into an education savings account with restricted but multiple uses.  Parents can then use their funds to pay for private school tuition, virtual education programs, private tutoring or saving for future college expenses.

Congratulations and thanks to sponsors Senator Rick Murphy and Represenative Debbie Lesko, my colleagues at the Goldwater Institute especially my coauthor for the ESA paper Nick Dranias. The tireless hard work of Arizona’s school choice coalition resulted in this passage, including but not limited to: A+ Arizona, the Arizona School Tuition Organization Association, the Arizona Catholic Conference, the Center for Arizona Policy, the Goldwater Institute and the Institute for Justice in additional to national partners such the Alliance for School Choice, the Foundation for Educational Choice and the Foundation for Excellence in Education.

This has been quite the week for parental choice in Arizona. First, the United States Supreme Court dispatched a challenge to the tax credit program that had been bouncing around in the 9th circuit for many years. Somehow in the fevered imagination of the ACLU an entirely voluntary program in a state which subsidizes secular options at a much higher rate than the tax credit scholarship compels parents to send their children to religious schools. It would be nice if these guys would follow the lead of the ACLU in Los Angeles and do something useful like suing against tenure policies that really damage the education of children.

Instead, they will probably go straight into court on the ESA program. Sigh. Nick and I followed the lead of very perceptive questioning in the Arizona Supreme Court’s deliberation over special needs voucher programs to make the case for the constitutionality of the ESA concept under the restrictions of the Arizona Constitution. Attorneys on both sides of the case agreed that a program allowing multiple uses of funds would not violate a restriction on providing aid to private or religious schools. Otherwise, we can argue that it is unconstitutional to pay state workers salaries out of the public treasury: some of that money winds up paying private school tuition in religious schools. 

Quelle horreur!

Parents will be using this program for things other than private school tuition, and parents have an incentive to look for education programs which deliver strong results and a low-cost due to the possibility of saving for college expenses. Paging Dr. Technology! As I’ve argued here before, this is a superior design for a parental choice program, and I’ll go further by saying that when we get any kinks worked out, choice supporters should seriously consider converting voucher programs into a system of public contributions to ESAs.

Next the legislature expanded the maximum size of an individual tax credit contribution from $500 for an individual and $1,000 for a married couple filing jointly to $750 for an individual and $1,500 for a couple in addition to the ESA bill.  The legislature also voted to eliminate the statewide cap on the corporate credit.

Great team wins all. Now we need to roll up our sleeves and get these programs to work for the kids who need them.

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