In case you missed it, the U.S. Supreme Court last week heard arguments in a combined pair of cases from Arizona concerning that state’s tax-credit scholarship program. The Ninth U.S. Circuit Court of Appeals last year ruled in favor of a complaint by the American Civil Liberties Union, which alleged Arizona’s scholarship law violates the First Amendment’s Establishment Clause because most of the tax-deductable donations associated with the program go to religious schools.
But Arizona Christian School Tuition Organization v. Winn isn’t entirely a case about religion, or school choice. It’s really about the state’s claim on our money. The question before the court strikes at the very core of our liberties.
My story at School Reform News covers the essentials. What’s important to understand here is Arizona’s scholarship program is not a voucher system. The state’s constitution, in fact, prohibits any direct tax funding of private schools. What the Arizona legislature did in 1998 was create a “middle man” in the form of school tuition organizations: Taxpayers could get a 100 percent deduction up to $500 (or $1,000 for couples filing jointly) by contributing to one of these nonprofit organizations, which would then distribute scholarships to the families of eligible students to attend the school of their choice. (There has been some controversy about the definition of “eligible,” but that’s not at issue in this case.)
Turns out, the schools of choice for more than 60 percent of participating families in Arizona have been Christian schools. The ACLU argues that means the state is effectively funding religious schools, even though the state isn’t picking or choosing which schools receive the money. As ACLU lawyer Paul Bender put it to the justices last week, the tuition organizations “are, on the government’s behalf, distributing tax revenues” to religious schools because that tax money—the money the government is letting taxpayers keep—would have otherwise gone to the state treasury.
That argument gobsmacked the more conservative members of the court. Even Justice Anthony Kennedy made fun of it.
“I have some difficulty that any money that the government doesn’t take from me is still the government’s money,” Kennedy told Bender. “If you reach a certain age, you can get a card and go to certain restaurants and they give you 10% credit. I think it would be rather offensive for the cashier to say, ‘And be careful how you spend my money,’ ” quipped Kennedy, who is 74.
Justice Kennedy may have been amused, but Justice Samuel Alito certainly wasn’t. “There is a very important philosophical point here,” he said. “You think that all the money belongs to the government except to the extent that it deigns to allow private people to keep some of it.”
Meantime, Adam Schaeffer at the Cato Institute wasn’t merely offended by Bender’s argument; he was offended the case was before the court at all. The Ninth Circuit’s reasoning “arrogates to the state all property, dissolving the distinction between public and private funds as well as public and private choices. It is a disturbing, dangerous decision,” Schaeffer wrote at Cato’s @ Liberty blog. He wants the Supreme Court to smack down the appeals court, good and hard: “[The Ninth Circuit's] ruling is so awful that I can only pray SCOTUS rules beyond the questionable standing of the plaintiffs and comprehensively dismembers this most egregious 9th Circuit decision.”
(By the way, I interviewed Schaeffer for my story but couldn’t include his quotes for lack of space. He reiterated how he believes the Ninth Circuit’s departure from precedent is so egregious, it would be an injustice if the Supreme Court simply vacated the case on grounds of plaintiffs’ lack of standing. “They need to put to rest, once and for all, this notion allowing taxpayers keeping some of their money is the equivalent of the goverment sending them a check,” Schaeffer told me.)
In a similar vein, Jay Greene takes on Education Sector’s Kevin Carey, who argued in a post at The Quick and the Ed blog that Arizona’s tax-credit scholarship program is a “shell game” at the expense of “a well-established process for spending public resources.” Where the ACLU’s Bender tried to be oblique, Carey is explicit: The respondent’s “premise is that people own every dollar they come to possess. They don’t. They owe some of it the government. It’s not their money; it’s the government’s money. That’s what it means to live in a functioning society.”
Greene makes short work of this line of reasoning:
[I]f Carey wishes to be consistent he should oppose the charitable giving deduction because that money really belongs to the government, not to individuals who the government is encouraging to support charities. He should also call for an elimination of the deduction because there are some charities that have misused or unwisely spent the money they have received. Keeping the deduction but cracking down on abuse clearly wouldn’t satisfy him because he seems unmoved by efforts in Arizona to do that with the tax-credit scholarship program.
Perhaps Kevin Carey should stick to writing about higher education, where he has a number of useful things to say. When he wanders into the world of K-12 he seems to lose the ability to make logical and consistent arguments. It is obvious he has not thought through the implication of his argument that would oppose all uses of tax deductions and credits. He’s so focused on under-cutting private school choice that he fails to consider what his position would mean for home-ownership, charitable giving, or pre-school attendance. Emerson may have been right that a foolish inconsistency is the hobgoblin of little minds, but that doesn’t mean we can abandon consistency altogether.
From Greene’s keyboard to Justice Kennedy’s clerk’s inbox, we can only hope.
What we have in the Arizona tax-credit scholarship cases is a very clear example of the claims of the state versus the rights of the individual. Are there no limits on what the government may do or what the government may take? No exaggeration: If the ACLU-Kevin Carey argument prevails, it would be another inversion—and a true perversion—of the fundamental principles upon which the republic was founded.