Constitutional Opinions

Seeing Through a Fake Injury

Supreme Court upholds Arizona educational tax credit -- and greater school choice.

By 4.5.11

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Numerous American parents experience this dilemma. Their child is struggling for any number of reasons in the local public school. They would like to give their child a chance in another environment. However, they cannot afford to move or choose other educational options. They're trapped.

You would think that a law meant to reduce the financial barriers restricting these parents would be welcomed. Yet, certain groups are so scared of anything that reduces the barriers to parents choosing, if the choosing involves religious schools, that they will fake an injury to derail a law that does so. Fortunately, five Supreme Court justices yesterday reminded a group of fakers from Arizona that they were not injured by such a law.

The law those claiming injury wanted declared unconstitutional was a 1997 Arizona bill that provides tax credits for contributions to School Tuition Organizations (STOs). These STOs would then use the contributions to provide scholarships to students attending private schools.

There were two important things about the program. First, families or other Arizonans could support this scholarship fund and receive a tax credit and not merely a tax deduction. Second, the STOs could provide scholarships for students attending either secular or religious schools.

Those claiming injury brought suit against one of the STOs, the Arizona Christian School Tuition Organization, on the basis that their First Amendment rights were violated. They argued the tax credits were given to help provide scholarships to students attending private religious schools and therefore violated the Establishment Clause.

Fortunately, five of the juris doctors saw through the fake injury. To sue, they pointed out that you have to prove that you experienced injury and that the Court's decision could address that injury. Justice Kennedy, writing for the majority, noted that the Arizona program may actually save the state money since it could lead to the state having to pay for the education of fewer children. There's certainly no injury in that particular case.

Even if the tax credit adversely influenced Arizona's education budget, he observed, no injury occurred unless an eventual tax increase was caused by the tax credit program (a claim that those claiming an injury never established).

Finally, the Court noted that even if the financial connection was established, no Establishment Clause problem exists. As Kennedy wrote, "a tax credit allows dissenting taxpayers to use their own funds in accord with their own consciences." In other words, it doesn't force anyone to give money to a religious organization through a government program. After all, "Private citizens create private STOs; STOs choose beneficiary schools; and taxpayers then contribute to STOs." The government merely refunds their money.

Oddly, the fakers claim that when Arizonans give their own money to the private school scholarship funds, they are depriving the government of money. Consequently, those who do not give suffer some sort of indirect Establishment Clause injury.

To the majority of the Court, this claim faked an injury. As the Court noted, this view "assumes that all income is government property, even if it has not come into the tax collector's hands." In contrast, the majority held, "When Arizona taxpayers choose to contribute to STOs, they spend their own money, not money the State has collected from respondents or from other taxpayers.… Private bank accounts cannot be equated with the Arizona State Treasury." It's good to know that we're not at that point yet.

It's also good to know that Arizona's parents can be assured that a scholarship program providing them greater educational choice is no longer held hostage by fake injury claims.

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About the Author

Perry L. Glanzer teaches in the School of Education and the Institute of Church-State Studies at Baylor University.