The right of taxpayers to challenge public funding of religious education must be preserved, Americans United for Separation of Church and State has told the U.S. Supreme Court.
The high court tomorrow will hear Arizona Christian School Tuition Organization v. Winn, a case that challenges an Arizona scheme that allows taxpayers to take a 100 percent credit for donations to school tuition organizations that fund religious and other private schools.
Under the controversial program, nearly 92 percent of the funds collected have gone for tuition at religious schools. The set-up is being challenged as a violation of church-state separation, but the case also raises issues of “standing” – the right to sue.
“Americans must have the right to go to court when tax money is diverted to religion,” said the Rev. Barry W. Lynn, executive director of Americans United. “Now, some groups want to slam the courthouse door in our faces.”
The Arizona program is supported by TV preacher Pat Robertson’s American Center for Law and Justice, Jerry Falwell Jr.’s Liberty Counsel, the U.S. Conference of Catholic Bishops, the Christian Legal Society and an array of other pro-voucher organizations like the Institute for Justice.
The religious school subsidy is also backed by the Solicitor General’s Office at the U.S. Department of Justice.
Lynn said he was disappointed to see the Obama administration side with right-wing groups in this case. Not only did the Justice Department argue in favor of the Arizona funding scheme, it advocated denying taxpayers’ right to challenge the plan in court. Furthermore, the Solicitor General’s Office requested and was granted 10 minutes to argue in favor of the plan during oral argument before the justices.
“It’s a shame that the Obama administration has taken the wrong side in this case,” Lynn said. “The Arizona scheme diverts scarce tax dollars to religious schools. There is no reason in the world for the administration to support something like that.
“I am even more disappointed that the Justice Department wants to block taxpayers from challenging schemes like this,” Lynn continued. “Conservatives on the Supreme Court have been whittling away at Americans’ right to challenge aid to religion. Now the Obama administration is encouraging them to go even further. It’s inexplicable.”
AU’s brief, filed Sept. 22 in conjunction with the American Jewish Committee, the Anti-Defamation League, the Baptist Joint Committee on Religious Liberty and The Interfaith Alliance Foundation, urges the high court to protect taxpayers’ rights to seek redress in court.
Tax credit plans, the brief asserts, must be subject to proper oversight through taxpayer lawsuits, since they are often open to abuse.
“If anything, contemporary fiscal politics suggest that the support of religion through tax credits is even more prone to abuse than is religious support through cash grants,” asserts the brief. “Like most tax cuts, tax expenditures ‘are subjected to considerably less congressional and popular scrutiny than are direct appropriations.’”
The AU brief was drafted by Americans United Legal Director Ayesha N. Khan along with attorneys Kurt Wimmer, Gregory M. Lipper, Charles Kitcher and Sarah M. Powell of Covington & Burling, LLP in Washington, D.C.
Since 1997, the Arizona program has diverted $349 million in public funds to private schools, with the vast majority of the money going to religious schools.
The program has been plagued with problems. For example, the plan allows parents to earmark donations for specific children. Since the law specifically bars parents from donating to pay for their own child’s tuition, some parents have donated for a friend’s child and vice-versa.
In 2009, two Arizona newspapers reported that much of the largess was going to well-off families – even though the program was pitched as a way to help poor and minority students.
According to the Arizona Republic, two out of every three scholarships in 2007 went to middle- and upper-class students who would have already been able to attend private schools without the tax-credit aid.