Phi Beta Cons

School Choice Back in the Supreme Court

Eight years after the Supreme Court ruled that Cleveland, Ohio’s school-voucher program was constitutional even when parents used vouchers to directly pay tuition at private, religious schools, the constitutionality of school choice is back before the Supreme Court, this time with a twist. In spite of the Supreme Court’s definitive ruling in Zelman v. Harris, the Ninth Circuit last year struck down a key aspect of Arizona’s school-choice program, which provided tax credits for donations to organizations that provide scholarship funds for K-12 schools. These organizations provide tuition funds for both religious and secular schools, and the Ninth Circuit held that the program violated the Establishment Clause.

This ruling was inexplicable in light of Zelman, and I was not surprised to see the Supreme Court agree to hear Arizona’s appeal (and it’s still considering a similar petition filed by the indomitable attorneys at the Institute for Justice). The twist, however, came when the Court also granted the Arizona Christian School Tuition Organization’s cert petition. This petition, filed by my colleagues at the Alliance Defense Fund Center for Academic Freedom, challenges the standing of the plaintiffs in the case. As Jordan Lorence explains over at the Academic Freedom File, our assertion is that the plaintiffs have not suffered any harm as a result of the Arizona program, and without suffering any harm, they cannot challenge the constitutionality of the program. No tax money goes to private religious schools under the program, and there is a real possibility, in fact, that the program actually saves Arizona taxpayers money by decreasing the number of students educated in public schools.

Stay tuned . . . the Ninth Circuit’s ruling on the merits constituted a direct assault on Supreme Court precedent and on the ability of states to maximize parental choice as an element of school reform; while its standing ruling allowed virtually anyone to stampede into court to undo the results of the democratic process, regardless of whether they’d suffered any actual harm as a result of the challenged reforms.

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