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Educational policy analysis archives.
n Vol. 8, no. 36 (July 30, 2000).
Tempe, Ariz. :
b Arizona State University ;
Tampa, Fla. :
University of South Florida.
c July 30, 2000
Taxing the establishment clause : the revolutionary decision of the Arizona Supreme Court in Kotterman v. Killian / Kevin G. Welner.
Arizona State University.
University of South Florida.
t Education Policy Analysis Archives (EPAA)
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1 of 24 Education Policy Analysis Archives Volume 8 Number 36July 30, 2000ISSN 1068-2341 A peer-reviewed scholarly electronic journal Editor: Gene V Glass, College of Education Arizona State University Copyright 2000, the EDUCATION POLICY ANALYSIS ARCHIVES. Permission is hereby granted to copy any article if EPAA is credited and copies are not sold. Articles appearing in EPAA are abstracted in the Current Index to Journals in Education by the ERIC Clearinghouse on Assessment and Evaluation and are permanently archived in Resources in Education Taxing the Establishment Clause: The Revolutionary Decision of the Arizona Supreme C ourt in Kotterman v. Killian Kevin G. Welner University of Colorado, BoulderAbstractThis article explores the nature and implications o f a 1999 decision of the Arizona Supreme Court, upholding the constituti onality of a state tax credit statute. The statute offers a $500 tax credi t to taxpayers who donate money to non-profit organizations which, in turn, donate the money in grants to students in order to help defray the costs of attending private and parochial schools. The author concludes that the Arizona decision elevates cleverness in devising a statutor y scheme above the substance of long-established constitutional doctri ne. This article is one of four on the Arizona Tax Cred it Law: Moses: Hidden Considerations of Justice Wilson: Effects on Funding Equity Rud: Moral Considerations
2 of 24Diverse Beliefs Within a Unitary System Democracy, according to Chubb and Moe (1990 ), undermines American schooling. These authors point to a purported bureaucratic sub version of educational goals and efficiency. The marketÂ—individual choices by studen ts and parentsÂ—would in their view drive more efficient and higher-quality school s. While Chubb and Moe (1990) support their ar guments by positively comparing Catholic schools to public schools, their book give s short-shrift to issues concerning how a market-based educational system might implica te issues of religious liberty. Ultimately, in discussing which existing private sc hools should be included among those eligible to participate in the government-funded ma rket of schools, they parenthetically offer their Â“own preference ... to include religiou s schools ..., as long as their sectarian functions can be kept clearly separate from their e ducational functionsÂ” (p. 219). But the issue of religious schools is inext ricably intertwined with the market-based model. Simply put, many families wouldÂ—all other fa ctors being equalÂ—choose a sectarian education for their children. Not surpris ingly, then, the recent trend toward market-based educational policies, such as public-s chool choice, charters, magnets, and vouchers, has prompted a new series of disputes con cerning how to best balance the conflicting religious protections in the First Amen dment. Federal courts have perpetually struggled t o address the tension between the First Amendment's Â“establishment clauseÂ” (forbidding laws Â“respecting an establishment of religionÂ”) and its Â“free exercise clauseÂ” (forbiddi ng laws Â“prohibiting the free exercise thereofÂ”). These two clauses can press courts to ac t in diametrically opposed directions. Such conflicting pressures are evident, for instanc e, in the governmental practice of exempting church property from taxation. If one's p erspective is that this policy is a preference for religious institutions over secular institutions, then these exemption laws violate the establishment clause's dictate against government benefits for religion. However, if one's perspective is that the power to tax is the power to destroy, then these laws merely fulfill the free exercise dictate again st burdening religious freedom. Given this tension and the importance of th e perspective of the policy-maker, government neutrality toward religion is an aspirat ion Â—a goal to strive for but one that is not realistically attainable. Stephan Carter (19 93) gives the example of an Alabama law allowing schools to mandate a one-minute period of time, before the school day begins, for Â“meditation or voluntary prayer.Â” This law was held by the U.S. Supreme Court to violate the establishment clause ( Wallace v. Jaffree 472 U.S. 38 (1985)) because it created a coercive environment promoting student prayer. Carter writes: And what are the likely classroom dynamics? I have nothing on which to base an empirical judgment, but I can hazard an edu cated guess. Many students will prayÂ—we can take that as givenÂ—but if the effect o n the dissenter of silent prayer during a moment when all students are silent is as coercive as the majority feared, then the Court is probably wrong to suggest that, in the absence of the moment of silence, noth ing prevents those students who want to pray from doing so. After all, if the knowledge that many of one's classmates are praying during the mom ent of silence produces pressure to pray (and the Court may be right), then surely the knowledge that many of one's classmates are not praying as the school day opens will produce pressure not to pray. There is, in short, no neutral position ( p. 191).
3 of 24Faced with this dilemma, vouchers offer an attracti ve alternative. Instead of trying to fit all schools to all children, vouchers allow each ch ild to select an appropriate school. This is particularly salient in the area of religio us teaching, since the establishment clause clearly prohibits public schools from provid ing the religious education that many parents want for their children. Vouchers offer a l oophole, allowing the government to assist all parents in funding their children's educ ation, even if those parents' educational decisions are driven by religious beliefs. But vouchers themselves are constitutionall y suspect. As discussed in greater detail below, courts have placed substantial restrictions on state and local voucher plans, the more daring of which clearly run afoul of the estab lishment clause (as applied to the states through the due process clause of the Fourte enth Amendment). The Arizona Law Accordingly, given the legal instability of vouchers, Arizona's state government in 1997 passed legislation creating a non-voucher aven ue of accomplishing the same goalsÂ—allowing a state tax credit of up to $500 for donations to school tuition organizations (STOs), which would then allocate vou cher-like grants to students. In full, the statute reads as follows: A. For taxable years beginning from and after Decem ber 31, 1997, a credit is allowed against the taxes imposed by this title for the amount of voluntary cash contributions made by the taxpayer during the taxable year to a school tuition organization, but not exceeding five hundre d dollars in any taxable year. The five hundred dollar limitation also appli es to taxpayers who elect to file a joint return for the taxable year. A husb and and wife who file separate returns for a taxable year in which they c ould have filed a joint return may each claim only one-half of the tax cred it that would have been allowed for a joint return.B. If the allowable tax credit exceeds the taxes ot herwise due under this title on the claimant's income, or if there are no taxes due under this title, the taxpayer may carry the amount of the claim not used to offset the taxes under this title forward for not more than five con secutive taxable years' income tax liability. C. The credit allowed by this section is in lieu of any deduction pursuant to Â§170 of the internal revenue code and taken for sta te tax purposes. D. The tax credit is not allowed if the taxpayer de signates the taxpayer's donation to the school tuition organization for the direct benefit of any dependent of the taxpayer. E. For purposes of this section: 1. Â“Qualified schoolÂ” means a nongovernmental prima ry or secondary school in this state that does not discri minate on the basis of race, color, sex, handicap, familial statu s or national origin and that satisfies the requirements prescrib ed by law for
4 of 24private schools in this state on January 1, 1997.2. Â“School tuition organizationÂ” means a charitableorganization in this state that is exempt from fede ral taxation under Â§501(c)(3) of the internal revenue code and t hat allocates at least ninety percent of its annual revenue for e ducational scholarships or tuition grants to children to allow them to attend any qualified school of their parents' choic e. In addition, to qualify as a school tuition organization the cha ritable organization shall provide educational scholarships or tuition grants to students without limiting availability to only students of one school. A.R.S. Â§ 43-1089 (footnotes omitted). In short, the mechanism created by the stat e of Arizona tells those who owe state taxes that they may reallocate that money from the state general fund to a scholarship-granting organization. (Note, however, that while the statute calls these grants Â“scholarships,Â” they are not necessarily tie d to either need or merit. (Note 1)) Whereas voucher plans entail granting state-allocat ed funds to schools through the private decisions of parents, the Arizona plan inse rts two intermediate steps into the process. First, the grants are issued by privatelycreated, non-profit School Tuition Organizations (STOs), rather than directly by the g overnment. Second, state allocation is achieved through a dollar-for-dollar tax credit giv en to donating taxpayers. The following flow charts illustrate the added steps: This Arizona system results in the governme nt still footing the bill for all the scholarshipsÂ—through directly foregone revenues (es sentially reimbursing the taxpayer). But control over the funding is taken from the gove rnment and given to two other parties: (a) individual taxpayers, who can decide to which S TOs they will allocate the funds, and who can earmark the funds to anyone who is not a de pendent; and (b) individual STOs,
5 of 24 which can decide the grant recipients for any non-e armarked funds. The following table outlines differences between vouchers and the Arizo na tax credit. VouchersArizona Tax Credit Funding Ultimately From: GovernmentGovernment Funding Allocation Decisions Made by: Government Officials Private Non-Profit Organizations and Donating Taxpayers Grants Made by: GovernmentPrivate Non-Profit Organizations State Money Directly Allocated to: Schools through Parents Self-Selected Taxpayers Level of Regulation: ModerateLow The legal challenge to the Arizona tax cred it law argued that this mechanism has the same practical effect as a direct grant of general fund money in the form of vouchers. Legally, the transformation from voucher to tax cre dit constitutes, the argument goes, a distinction without a difference Consider the statement of John Huppenthal, the Republican chair of the Arizona Senate's Education Committee, who is a longtime voucher supporter: Â“This has turned into something so close to vouchers you almost can't tell the differenceÂ” (Bland, 2000, A22). Or, as sta ted by Trent Franks, the former Arizona legislator and activist who came up with the tax cr edit idea, Â“Why do we need vouchers at this point?Â” (Bland, 2000, A22).The Kotterman Decision & Dissent The Arizona Supreme Court's majority opinio n (the court's five justices split on a 3-2 vote) rejected challenges based on the state co nstitution as well as the U.S. Constitution ( Kotterman v. Killian 972 P.2d 606 (1999)). Below, I briefly address th e arguments and decision concerning the state provisi ons; I then focus on the establishment clause claims. For a more complete discussion of th e Arizona constitutional issues, please see Professor Paul Bender's foreword to the Arizona State Law Journal Volume 32, Number 1. Arizona Constitution The Arizona constitution provides that Â“no public money . shall be applied to any religious worship, exercise, or instruction or to t he support of any religious establishmentÂ” (Article II, Â§12). It also prohibits any Â“tax . in aid of any . private or sectarian school . .Â” (Article IX, Â§10). The cour t majority rejected arguments based on these provisions, holding instead that (a) the tax credit scheme does not give Â“public money,Â” nor does it levy any Â“tax;Â” and (b) tax cre dits are no different from tax deductions, which have long been allowed for charit able contributions to religious institutions. The majority's assertion that the credit do es not implicate Â“public moneyÂ” hinges on a rather formalistic definition of the term. The op inion points out that Â“no money ever enters the state's control or is deposited in the s tate treasury or other accounts under the management or possession of governmental agencies o r public officialsÂ” (972 P.2d at
6 of 24618). Because the state never gains actual possessi on or immediate control over the funds involved, these tax credits were held to not consti tute public money. The dissent calls this a Â“dangerous doctrin e that permits the state to divert money otherwise due the state treasury and apply it to us es forbidden by the state's constitutionÂ” (972 P.2d at 640). Certainly, the state exercises a substantial degree of effective control over this money, and this control arises out of the state's power to tax. (Without the tax, the state could not direct taxpayer donations to ST Os.) This aspect of the dissent relies on a line of scholarship that explains how tax credits are analogous to government expenditures. This Â“tax expenditureÂ” doctrine looks at the practical effect of the credits and determines that they are the equivalent of dire ct government grants (both are charges made against the state treasury). The majority rejects the tax expenditure ap proach, which it argues assumes Â“that the tax return's purpose is to return state money to ta xpayersÂ” (972 P.2d at 618): For us to agree that a tax credit constitutes publi c money would require a finding that state ownership springs into existence at the point where taxable income is first determined, if not before. The tax on that amount would then instantly become public money. We believe that such a conclusion is both artificial and premature. It is far more reasonable to say that funds remain in the taxpayer's ownership at least until final calcu lation of the amount actually owed to the government, and upon which the state ha s a legal claim. (972 P.2d at 618, footnotes omitted.) The majority also defends the tax credit ba sed on an analogy to tax deductions for charitable contributions to religious institutions, the constitutionality of which have never been seriously questioned. Â“If credits constitute p ublic funds,Â” the court argues, Â“then so must other established tax policy equivalents like deductions and exemptionsÂ” (972 P.2d at 618). In response, the dissent points to Â“very s ignificant differences between valid tax benefits and the Arizona tax creditÂ” (972 P.2d at 6 42). The latter, the dissent asserts, Â“is not an inducement to charitable giving; there is no philanthropy at all because the credit provided is dollar-for-dollarÂ” (972 P.2d at 642). B ecause a taxpayer's $500 donation is rebated in full as a credit against the tax that ot herwise would be paid to the state, the dissent views the donation more as an allocation of state money than of private money. Â“Unlike neutral deductions [available for all chari table giving], the credit is not the state's passive approval of taxpayers' general support of c haritable institutionsÂ” (972 P.2d at 643). To illustrate, the dissent explains the eff ective difference between a tax credit and a tax deduction. A couple with an income of $60,000 per year sending $500 to an STO would receive a tax credit of $500 and would thus save $5 00 in taxes. The Â“contributionÂ” would cost them nothing. The same co uple, contributing to almost any other qualified philanthropic cause, wou ld receive a deduction from gross income. To reduce their state taxes by $ 500, that couple would need to contribute approximately $13,000. (972 P.2d at 643, n. 18.) For the majority, however, this purported differenc e is simply a matter of degreeÂ—they see no principled basis to distinguish between the two types of benefits, given that they both amount to a reduction in amounts otherwise owe d to the treasury.
7 of 24 Establishment Clause of U.S. Constitution To determine whether the Arizona tax credit statute violates the federal establishment clause, the Kotterman court applies a three-pronged test set forth in a long-standing (although often-attacked) Supreme Cou rt precedent: Lemon v. Kurtzman 403 U.S. 602 (1971). Pursuant to this Lemon test, a law does not violate the establishment clause if (1) it serves a secular pur pose; (2) its principal or primary effect neither advances nor inhibits religion; and (3) it does not foster an excessive government entanglement with religion. The second (primary eff ect) prong was the main point of dispute in the Kotterman case. This prong requires that a statute be Â“neutr al on its face and in its applicationÂ” and not have the Â“primary e ffectÂ” of advancing the sectarian aims of nonpublic schools. (See Mueller v. Allen 463 U.S. 388, 392 (1983); see also Committee for Pub. Educ. & Religious Liberty v. Nyq uist 413 U.S. 756, 788 (1973).) These latter cases, Mueller and Nyquist are the touchstones for the majority and the dissent, respectively. The majority argues that the Arizona law is analogous to the Minnesota law upheld in Mueller ; the dissent argues that the Arizona law is analog ous to the New York law held unconstitutional in Nyquist Below, I discuss those two cases, followed by a brief discussion of a second case rel ied upon by the Kotterman majority, Jackson v. Benson 218 Wis.2d 835, cert. denied 119 S.Ct. 467 (1998). Mueller v. Allen In Mueller v. Allen 463 U.S. 388 (1983), the U.S. Supreme Court uphel d a Minnesota tax deduction for school expenses incurre d on behalf of children attending elementary or secondary schools. The antecedent to this Minnesota law was originally passed in 1955. That law allowed parents to claim a tax deduction of up to $200. For public school students, these expenses included tex tbooks and transportation expenses. For private school students, these expenses also in cluded tuition. Among the subsequent amendments to this law were occasional increases in the maximum deduction per child (e.g., in 1976, the maximum for elementary school e xpenses was raised to $500, with $700 allowed per child for secondary school expense s). (Note 2) The Mueller Court held that these deductions benefitting paren ts of parochial school children did not violate the establishment c lause. Applying the Lemon test, the Mueller Court held that the programs had the secular purpo ses of ensuring that Minnesota's citizenry is well-educated and that pri vate and parochial schools' financial health remains sound. Further, the Mueller Court held that these deductions did not primarily advance the sectarian aims of parochial s chools and did not excessively entangle the state in religion. As the Kotterman court notes, the Mueller Court focused heavily on distinct characteristics of the Minnesot a law: (a) it was open to all parents incurring educational expenses, including those who se children attend public school; and (b) the funds did not go directly to the privat e schools but rather reached those schools as a result of the numerous private choices of individual parents. In discussing this primary effect prong of Lemon as applied to the Arizona statute, the Kotterman majority draws parallels to these latter two chara cteristicsÂ—openness to all parents and private parental choices. Arguing t hat the Arizona benefits are open to all parents, the majority points to companion language in the Arizona code, which allows taxpayers to claim up to a $200 tax credit for cont ributions to their neighborhood public school's extracurricular activities (Â§ 43-1089.01). Arguing that public funds do not go directly to the private schools, the majority conte nds that the Â“primary beneficiaries of this credit are taxpayers who contribute to the STO s, parents who might otherwise be deprived of an opportunity to make meaningful decis ions about their children's educations, and the students themselvesÂ” (972 P.2d at 616). While acknowledging
8 of 24Â“ripple effects ... viewed through a wide-angle len s, radiat[ing] to infinity,Â” the majority concludes that Â“[p]rivate and sectarian schools are at best only incidental beneficiaries of this tax credit, a neutral result that we believe i s attenuated enough to satisfy Mueller and the most recent Establishment Clause decisionsÂ” (972 P.2d at 616). (Note 3) The dissent, however, distinguishes Mueller as follows: Under the provision upheld in Mueller religious schools benefitted only as a result of true choice made among a wide selection of alternatives, both public and private [citation omitted]. Under the Ar izona plan, there is no real choiceÂ—one may contribute up to $500 to suppor t private schools or pay the same amount to the Arizona Department of Re venue. In reality, this is not a choice but government action designed to i nduce taxpayers to direct financial support to predominantly religious school s. (972 P.2d at 629.) The Arizona tax credit, the dissent also notes, Â“is available only to those who choose to support private, predominantly religious schools. T hose who wish to contribute to public schools are allowed only a $200 credit, and their c ontributions can be used only to reimburse fees paid for extracurricular activitiesÂ” (972 P.2d at 628, citation omitted). In response to the majority's contention th at public schools do not need the same benefits, since public school students do not pay t uition, the dissent points to Â“deficiencies of state financing of public schools and the underfinanced and unfilled educational missions of those schools [citations om itted]. If we are to consider equality or neutrality of the two credits, we must bear in m ind that public schools, like private schools, need assistance to perform their education al missionÂ” (972 P.2d at 626). Provisions, the dissent asserts, Â“could have been m ade for a tax credit for contributions supporting the educational mission of the public sc hool systemÂ” (972 P.2d at 626). Committee for Pub. Educ. & Religious Liberty v. Nyq uist Instead of Mueller the dissent argues, the controlling precedent for the Kotterman case is Committee for Pub. Educ. & Religious Liberty v. Nyq uist 413 U.S. 756 (1973). The U.S. Supreme Court in Nyquist struck down a New York law providing (a) tuition grants to lowincome families (vouchers redeemable only at private schools) and (b) tax deductions for tuition payments, varying by income level. The law provided no benefits aimed at families with children in public schools. Noting that the private schools in New York were predominantly religious, the Nyquist Court stated that grants Â“offered as an incentive to parents to send their children to sect arian schools by making unrestricted cash payments to them [violate] the Establishment C lause ... whether or not the actual dollars given eventually find their way into the se ctarian institutions. Whether the grant is labeled a reimbursement, a reward, or a subsidy, its substantive impact is still the same.Â” 413 U.S. at 786. The Kotterman dissent characterizes the Arizona law as similarly providing benefits aimed only at private school contributions doing so in an unregulated manner likely to lead to abuse: Because Arizona's tax credit statute does not requi re that grant use be restricted to the secular aspects of education, the STOs' grants to private schools may be used in any manner the recipient sch ool wishes. Nor does the statute prevent an STO from directing all of it s grant money to schools that restrict enrollment or education to adherents of a particular religion or
9 of 24sect. Moreover, there is no limit on the dollar amo unt the STO can give to a school on behalf of a student. Thus, an STO could p ool several contributions and then pay the full tuition for any student, group of students, or for that matter, all students in any group of sc hools of a single religious faith. (972 P.2d at 630.) In contrast, the majority perceives Â“safeguards bui lt into the statute,Â” such as Â“the way in which an STO is limited, the range of choices reser ved to taxpayers, parents, and children,Â” and the system's Â“neutralityÂ” (972 P.2d at 620). These safeguards, the court reasons, result in an attenuation of any benefits r eceived by religious schools and Â“ensure that the benefits accruing from this tax cr edit fall generally to taxpayers making the donation, to families receiving assistance in s ending children to schools of their choice, and to the students themselves,Â” rather tha n to those schools (972 P.2d at 620). The dissent, in comparing Mueller and Nyquist first notes that Nyquist like Mueller involved a scheme whereby the state funds went in itially to parents and then to schools of the parents' choosing. The dissent then focuses on a point of contrast: In Mueller the Court upheld a Minnesota law allowing a deduc tion, in part because it was Â“available for educational expenses incurred by all parents including those whose children attend public school s.Â” Making the benefit available to this neutral and Â“broad classÂ” is an Â“ important index of secular effect.Â” The Court said the Establishment Clause do es Â“not encompass the sort of attenuated financial benefit . that eve ntually flows to parochial schools from the neutrally available tax benefit at issue . .Â” Indeed, the Mueller Court described Nyquist's unconstitutional, nonneutral, private school program in words directly applicable to the Arizona: Â“thinly disguised 'tax benefits,' actually amounting to tui tion grants, to the parents of children attending private schools,Â” the majorit y of which were sectarianÂ” (972 P.2d at 627-28, citations omitted). The dissent then notes that at least sevent y-two percent of private schools in Arizona are sectarian, and it concludes that the Ar izona law Â“is everything Nyquist held unconstitutionalÂ—a direct stipend that has the prim ary effect of advancing religion by tuition grants to religious schoolsÂ” (972 P.2d at 6 28). In contrast, the majority's primary basis f or distinguishing Nyquist focuses on the Â“broad class of citizensÂ” to whom the Arizona tax c redit is available (972 P.2d at 613). That is, while the New York benefits were available only to parents who sent their children to private school, the Arizona benefits ar e available to all taxpayers. The Arizona credit is not limited only to parents, let alone just those parents of private school students. Â“Thus, Arizona's class of beneficiaries i s even broader than that found acceptable in Mueller and clearly achieves a greater level of neutralit yÂ” (972 P.2d at 613).Jackson v. Benson As briefly mentioned above, the Kotterman majority supplemented its reliance upon Mueller with a discussion of the recent opinion of the Wis consin Supreme Court in Jackson v. Benson 218 Wis.2d 835, 578 N.W.2d 602 (1998). The Wiscon sin court upheld the constitutionality of a voucher plan dire cted at low-income students in the Milwaukee Public Schools (MPS). (Note 4) The Milwaukee Parental Choice Program (MPCP ), which began in 1989, includes
10 of 24the following provisions: (1) students may use the voucher at the private or parochial school of their choice; (2) the amount of the vouch er is the lesser of two numbers: the private or parochial school's operating and debt se rvice cost per pupil or the state's per-pupil aid to the MPS (about $4,900); (3) studen ts qualify for vouchers if their family income is not greater than 1.75 times the poverty l evel and if they meet certain enrollment requirements (e.g., during the previous school year, they were enrolled either in the MPS, in a private school in Milwaukee, in gr ades K-3 in a private school outside of Milwaukee, or were not enrolled in any formal sc hool); (4) Wisconsin sends a check directly to the school but made out to the parents, who endorsed it over to the educational institution; (5) participating schools must notify Wisconsin of their intention to participate in the program, comply with certain laws and meet at least one of four legislatively-established performance standards; an d (6) no more than 15% of the school district's enrollment may attend participating scho ols in any school year. As of the 1998-1999 school year, 6,194 students were particip ating in the program, far below the ceiling of approximately 15,000 students technicall y allowed to participate. In 1998, the Wisconsin Supreme Court upheld the program as constitutional ( Jackson v. Benson 218 Wis.2d 835, 578 N.W.2d 602 (1998)), and the U .S. Supreme Court denied a writ of certiorari (119 S.Ct. 467 (1998)), meaning that the state sup reme court opinion was allowed to stand, but without the U.S. Supreme Court's approval (or rejection). (Note 5) While a Wisconsin state opinio n is not binding precedent upon an Arizona court, such an opinion may prove persuasive The Kotterman majority found the following language particularly persuasive: In our assessment, the importance of our inquiry he re is not to ascertain the path upon which public funds travel under the amend ed program, but rather to determine who ultimately chooses that path. As w ith the programs in Mueller and Witters not one cent flows from the State to a sectarian private school under the amended MPCP except as a result of the necessary and intervening choices of individual parents. Jackson v. Benson 578 N.W.2d at 618. In Arizona, the Kotterman majority reasons, the decision-making process prec eding the scholarship allocation is Â“completely devoid of sta te intervention or directionÂ” (972 P.2d at 614): Arizona's statute provides multiple layers of priva te choice. Important decisions are made by two distinct sets of benefici ariesÂ—taxpayers taking the credit and parents applying for scholarship aid in sending their children to tuition-charging institutions. The donor/taxpaye r determines whether to make a contribution, its amount, and the recipient STO. The taxpayer cannot restrict the gift for the benefit of his or her own child. A.R.S. Â§ 43-1089(D). Parents independently select a school a nd apply to an STO of their choice for a scholarship. Every STO must allo w its scholarship recipients to Â“attend any qualified school of their parents' choice,Â” and ma y not limit grants to students of only one such insti tution. A.R.S. Â§ 43-1089 (E) (2) (emphasis added). Thus, schools are no more than indirect recipients of taxpayer contributions, with the final destinati on of these funds being determined by individual parents. (972 P.2d at 614) For its part, the Kotterman dissent found the Jackson opinion to be of little persuasive value. The Wisconsin statute, the dissen t notes, includes an Â“opt-outÂ”
11 of 24provision, pursuant to which students may be excuse d from the religious aspects of schooling at sectarian institutions. Similarly, Wis consin requires schools receiving grants to admit applicants without regard to the ap plicants' religious or nonreligious preference. (Note 6) Wisconsin's statute also expli citly limits state support to private institutions' educational (as opposed to religious) programs. Finally, unlike Arizona's system, which is weighted in favor of wealthier tax payers and provides no incentives for STOs to consider wealth as a scholarship criterion, the Wisconsin program is designed to provide greater choice to low-income families: Arizona's statute . contains no religious instr uction opt-out provision, appears to permit religious discrimination, permits funding of religious observance, and makes the tax credit available to a ll taxpayers, those who have children in school and those who do not, the r ich and the poor. Further, our statute makes no limitation on the amount of fu nding a school can receive from an STO for a particular student. Wisco nsin, in short, has made some attempt, successful or not, to limit the use o f state subsidies for religious instruction and ceremony. Arizona's progr am, on the other hand, will inevitably and primarily benefit religious obs ervance and instruction. (972 P.2d at 631).Circumventing the Constitution? The Arizona tax credit law provides a gover nment subsidy for taxpayers who wish to support religious activities. The state supreme court upheld the law even though more direct support by the government is constitutionall y forbidden. The circumventing nature of the law is pointed out by the Kotterman dissent, which warns that it allows private and religious STOs to provide scholarships to curre nt private school parents, essentially turning the donated money into tuition rebates. Â“Fu rther,Â” the dissent adds, while the law prohibits the STOs Â“from making grants to 'only stu dents of one school,' the statute does not prevent an STO from directing all of its grant money to a group of schools that restrict enrollment or education to a particular re ligion or sectÂ” (972 P.2d at p. 626). That is, Â“nothing forbids an STO from limiting its grant s or scholarships to students who adhere to a particular religion and will participat e in the required religious observanceÂ” (972 P.2d at p. 626). This enables the formation of STOs devoted to the supports of a particular religious belief. In fact, groups like the Â“Arizona Christian School Tuition OrganizationÂ” (ACSTO) have formed in order to target donors interested in supporting scholarships to schools with particular beliefs (in this case, evangelical Christianity). In its first year (1998), the ACSTO raised over a half-million dollars, second in the state only to the Catholic Tuition Organization of Phoenix (CTOP), the STO for med by the Roman Catholic Diocese, which raised more than $837,000 (Schnaiber g, 1999; Center for Market-Based Education and the Goldwater Institute, 2000). In 19 99, these amounts increased dramatically, to over $2.8 million for the ACSTO an d almost $4.7 million for the CTOP (Bland, 2000). Overall, $1.8 million was raised in 1998 by a total of fifteen tuition organizations (Center for Market-Based Education an d the Goldwater Institute, 2000), and over $13.3 million was raised in 1999 by a tota l of twenty-nine STOs (Bland, 2000). Even though the STOs cannot control parents school choices, they can target parents based on their knowledge of those parents' inclinations. The president of the ACSTO, when asked if the group had ever had a paren t not choose a Christian school, responded that this had never happened: Â“I don't kn ow what we'll do when we see that,Â”
12 of 24he said. Â“The people coming to us know who we are a nd that we're interested in giving scholarships to kids to go to these schoolsÂ” (Schna iberg, 1999). Moreover, parents have found a huge loophol e in the legislation, which prohibits donors only from earmarking money for their own dep endents. According to article in the Arizona Republic, Â“parents are writing $500 che cks for their friends' kids and asking them to do the same for theirsÂ” (Bland, 2000, A22). The newspaper identified one fund for which 96% of all donations were earmarked for s pecific private school students. The troubling nature of this scheme does no t escape the attention of the Kotterman dissent. It points out that the majority opinion's reasoning leaves no principled reason why the limit could not be increased far beyond $50 0, to pay the full cost of private, sectarian education. (Note 7) Accordingly, the diss ent attacks the tax credit as Â“directed so that it supports only the specific educational i nstitutions the Arizona Constitution prohibits the state from supportingÂ—predominantly r eligious schools": By reimbursing its taxpayers on a dollar-for-dollar basis the state excuses them from paying part of their taxes, but only if t he taxpayers send their money to schools that are private and predominantly religious, where the money may be used to support religious instruction and observance. If the state and federal religion clauses permit this, wha t will they prohibit? Evidently the court's answer is that nothing short of direct legislative appropriation for religious institutions is prohibi ted. If that answer stands, this state and every other will be able to use the taxing power to direct unrestricted aid to support religious instruction a nd observance, thus destroying any pretense of separation of church and state. (972 P.2d at 645).The Slippery Slope The rationale of the Kotterman majority would seem to allow for the positive check-off system presently included on federal 1040 forms to fund the Presidential Campaign Fund. Using all the present Arizona STOs ( see Bland, 2000, A22), I can envision something like the following potentially a ppearing on Arizona tax forms:
13 of 24
14 of 24Such a form, of course, could become unwieldy as mo re STOs are created and if the form also included every public school (in connecti on with the $200 option for extracurricular activities). But the logistics are hardly insurmountable. Mitchell v. Helms Many scholars who follow the U.S. Supreme Court are guessing that a case arising out of Ohio (see the Appendix to this paper for a d escription of this case, called Simmons-Harris v. Zelman 72 F. Supp. 2d 834, N.D. Ohio, 1999), will eventu ally end up before the Court. If this happens, much of the u ncertainty surrounding the constitutionality of vouchers (and, perhaps, vouche r-like alternatives) might finally be resolved. For the immediate future, however, onlook ers are closely reading the Justices' three opinions Mitchell v. Helms 120 S. Ct. 2530 (2000), decided on June 28, 2000. The Mitchell case arose out of a challenge to Chapter 2 of Title I of the Elementary and Secondary Education Act of 1965, which allows s tate education agencies to distribute "secular, neutral, and nonideological se rvices, materials, and equipment" to students who are enrolled in private nonprofit elem entary and secondary schools. In 1994, Congress enacted the "Improving America's Sch ools Act," which provides for loans of, among other things, taxpayer-funded compu ters to parochial schools (20 U.S.C. Â§ 7301-73). This legislation was challenged by parents in Louisiana, and a federal appeals court agreed that the provision of computers violated the establishment clause ( Helms v. Picard 151 F. 3d 347, 5th Cir. 1998). Although the facts of Helms are not direct ly connected to vouchers, the Supreme Court's deliberations were watched closely by those concerned about vouchers' constitutionality. Voucher supporters filed an amic us brief, urging the court to use the case to pave the way for vouchers to pass First Ame ndment muster. Justice Thomas obliged, writing an opinion clearly implying vouche rs' constitutionality; but he was able to get only three other Justices to join in his opi nion. (Thomas' opinion goes so far as to equate a refusal to aid religious schools with host ility toward religion.) Two concurring justices refused to go along with this judicial act ivism, issuing a much narrower opinion. (In addition, three Justices dissented.) The concurrence, written by Justice O'Conn er, upheld the law on the narrow ground that it does not define recipients by refere nce to religion, instead using neutral and secular criteria to allocate aid to students en rolled in religious and secular schools alike. O'Conner pointed out that, like the law chal lenged in Agostini v. Felton 521 U.S. 203 (1997), Chapter 2 allocates aid on the basis of neutral, secular criteria; it is supplementary to, and does not supplant, non-federa l funds. She concludes, "no Chapter 2 funds reach the coffers of religious schools; the aid is secular; evidence of actual diversion is de minimis ; and the program includes adequate safeguards" (p. 133 of the Court's slip opinion). Because O'Conner's opinion represents the "swing votes" on the present Court, it sets forth the governing law for the moment. Whethe r the Thomas position is eventually joined by the one additional vote needed to constit ute a majority will likely depend upon who is appointed to the Court by the nation's next President. Federal Court Challenge On February 15, 2000, the Arizona chapter of the ACLU filed, in the federal district court in Arizona, a new and separate chall enge to the tax credit statute ( Winn v.
15 of 24Killian case no. civ00-0287-phx-che). Because federal cou rts have ultimate authority and responsibility for interpreting the federal Con stitution, this district court is in no way bound to follow the Arizona Supreme CourtÂ’s decisio n as regards the First AmendmentÂ’s Establishment Clause. The state has moved to dismiss this federa l lawsuit, putting forth claims asserting sovereign immunity and purported protection provide d by a federal statute (the Federal Tax Injunction Act). To date, this dismissal motion is pendingÂ—and denial of the sovereign immunity argument may prompt an interlocu tory (i.e., immediate) appeal. This federal action, therefore, may not be resolved for many years. Conclusion Imagine a law establishing the Gideons' rel igious organization as the Â“Official Church of the U.S.A.Â” Such a law would strike at th e heart of the constitutional prohibition against laws Â“respecting an establishme nt of religion.Â” Upon challenge, it would be declared unconstitutional. Now imagine a l aw providing government grants to religious organizations that provide reading materi als for hotel rooms. This law, too, would quickly be seen as violating the establishmen t clause, because its principal or primary effect advances religion. (See Lemon v. Kurtzman 403 U.S. 602, 612-13 (1971), discussed in greater detail below.) Finally, imagin e a law that provides a dollar-for-dollar tax credit to individuals who don ate money to organizations that then grant the money to those who provide reading materi als for hotel rooms. Although the Gideons would almost surely be the main beneficiary of this law, the reasoning of the majority in Kotterman would seem to allow this last law to withstand a constitutional challenge. The fact that Arizona's government might cr eate a mechanism to encourage (actually, reimburse) targeted giving to religious organizations did not trouble the court. Yet, viewed in terms of effects, the practical dist inction between the tax credits and a direct allocation (vouchers) is that the latter all ocation is through representative democracy and the former is through direct democrac yÂ— with the wealthy entitled to more votes Consequently, the tax credit mechanism results in the allocation of presumptive tax dollars to support those institutio ns (religious or otherwise) that are most popular with the state's wealthiest residents. The hypothetical hotel-reading-material law is distinguishable from the Arizona tax credit law in at least two important ways. First, i t does not necessarily serve a secular purpose. The Kotterman court found the Arizona law to serve the legitimat e secular purpose of Â“bring[ing] private institutions into th e mix of educational alternatives open to the people of this state,Â” assuring the continue d financial health of private schools, and producing Â“healthy competitionÂ” for public scho ols (972 P. 2d at 611). If a law does not have a secular purpose, then it violates the es tablishment clause whether or not its primary effect advances religion (recall that a law must have a secular purpose, as an independent Â“prongÂ” of the Lemon test). Second, the hypothetical hotel-reading-mate rial is more difficult to characterize as an attempt to treat religious institutions in a neu tral, accommodating way. Neutrality toward religion has long been a guiding principle o f First Amendment jurisprudence. The evolution of Supreme Court decisionsÂ—and its re cent modificationsÂ—can be understood as an evolution in how the Court's major ity defines that neutrality. Three decades ago, the Arizona tax credit law would almos t surely have been considered by the Supreme Court to provide an unconstitutional and ex traordinary benefit to private, religious schools. Now, the Court may view that sam e law as a reasonable
16 of 24accommodation for the beliefs and needs of resident s who feel ill-served by the public schools. The Arizona Supreme Court grounds its Kotterman decision in such a neutrality argument: Basic education is compulsory for childre n in Arizona, but until now lowincome parents may have been coerced into accepting public education. These citizens have had few choices and little control over the na ture of their children's schooling because they could not afford a private education m ore compatible with their values and beliefs. Arizona's tax credit achieves a higher deg ree of parity by making private schools more accessible and providing alternatives to publi c education (972 P. 2d at 615). The court also notes that helping to pay for private sc hool tuition helps to balance out the fact that the state already pays the cost of students' a ttendance at public schools. Such rationales (i.e., such definitions of Â“neutralityÂ”) if carried to their logical conclusion will carry the nation toward the privatization ideals of Milton Friedman (1963, 1990). As the Kotterman dissent points out, if the majority's interpretati on of the First Amendment holds, then the government can use its taxing power (through tax credits) to direct unrestricted aid to support churches and other reli gious organizations. This could lead to a revolution in American schooling, and it is one t hat many fear will wipe out the educational and equity gains of the last century.NotesIn fact, the wealthiest students appear to be recei ving the vast majority of the law's benefits (Bland, 2000; Wilson, 2000). This is as tr ue of the $200 donations to the public school fund as it is of $500 donations to th e private school funds (Bland, 2000). Some funds, however, including the Catholic Tuition Organization, do means-test for their scholarships. 1. Presently, the Minnesota law allows a maximum deduc tion of $1,625 for elementary school expenses and $2,500 for secondary school expenses. This amendment was passed in 1997, along with an expansi on in the types of expenses that the deduction covers, adding academic summer c amps, summer school and up to $200 of the cost of a personal computer and educ ation software. Further, persons who do not itemize deductions on their fede ral income tax form can now take the deduction. Perhaps most notably, the 1997 amendments created a refundable tax credit for families with incomes under $33,500 (now $37,5 00): up to $1,000 per student or $2,000 per family. (If a f amily owes no taxes or owes less than the amount of the credit, they receive the dif ference as a refund.) The credit is available for the same education expenses as the de duction (textbooks, transportation, academic summer camps, summer schoo l and up to $200 of the cost of computer hardware and education software), except that it does not cover tuition. Expenses that exceed the credit amount may be used as a tax deduction. 2. Consider the governmental activities that have been upheld by the Court. Mitchell v. Helms (2000), discussed in the main text, upheld funding of hardware and software loans to public and parochial schools. Ago stini v. Felton, 521 U.S. 203, 222 (1997), upheld government-funded remedial instr uction in parochial schools. Other past cases have upheld government aid for a s ign language interpreter for a deaf student attending a Catholic high school ( Zobrest v. Catalina Foothills Sch. Dist. 509 U.S. 1 (1993); government reimbursement to re ligious schools for the grading of tests that were prepared, mandated, and administered by the state 3.
17 of 24( Committee for Pub. Educ. & Religious Liberty v. Reg an 444 U.S. 646 (1980); government reimbursement to the parents of parochia l school students for the cost of public transportation to and from school ( Everson v. Board of Educ. 330 U.S. 1 (1947); and government aid in providing non-religio us textbooks for students in parochial schools ( Meek v. Pittenger 421 U.S. 349 (1975); Board of Educ. v. Allen 392 U.S. 236 (1968)). The Milwaukee plan is the oldest surviving publicly funded voucher scheme. Several cities, however, including Washington D.C., New York City, Baltimore, and Dayton, Ohio, have privately-funded voucher pla ns. The most ambitious efforts are through the Â“Children's Scholarship Fun d,Â” which has already provided more than 40,000 Â“scholarships.Â” 4. The U.S. Supreme Court similarly denied a writ of certiorari petition in the Kotterman case. 5. Arizona's laundering of state money through several intermediate steps certainly does serve to disentangle the government from those religious activities of parents and institutions that ultimately benefit from the g overnment largess. Compare, on the one hand, the Milwaukee voucher program, which involves government monitoring to ensure that participating schools do not discriminate in admissions on the basis of religion and do not require voucher ed students to participate in religious activities. The Arizona system, on the ot her hand, requires only that schools not Â“discriminate on the basis of race, col or, sex, handicap, familial status, or national originÂ” (Â§43-1089(E)(1))Â—discrimination on the basis of religious adherence, preference, or observance is perfectly p ermissible. 6. The dissent notes that Arizona's tax credit statute actually has another loophole, allowing taxpayers a chance to make a profit: Â“Afte r a taxpayer has contributed to the STO and received a dollar-for-dollar refund fro m the Arizona Department of Revenue, nothing in the Internal Revenue Code preve nts him or her from reporting the contribution as a charitable deductio n on the federal income tax returnÂ” (972 P.2d at 642, n. 17). 7. Some of the below discussion presents information p rovided on-line by the Educational Commission of the States (ECS) athttp://www.ecs.org/ecs/ecsweb.nsf. 8. The unpublished opinion is available in pdf format at http://www.ij.org/cases/index.html.ReferencesBland, K (2000, April 9). School tax credits wide o pen to abuse: Millions are diverted from needy students. The Arizona Republic A1. Bowman, D. H. (2000, March 1). States giving choice bills a closer look. Education Week 19(25), 1, 24. Carter, S. (1993). The Culture of Disbelief: How American Law and Poli tics Trivialize Religious Devotion New York: Basic Books. Center for Market-Based Education and the Goldwater Institute (2000). EXTRA-CREDIT newsletter. [Online.] Available at: http://www.cmbe.org/extracredit.htm 9.
18 of 24Chubb, J. & Moe T. (1990). Politics, Markets, and America's Schools Washington DC: Brookings Institution Press.Friedman, M. (1963). Capitalism and Freedom Chicago: Univ. of Chicago Press. Friedman, M. & Friedman, R. (1990). Free to Choose: A Personal Statement San Diego: Harcourt Brace & Company.Schnaiberg, L. (1999, April 14). As tax day nears, Arizona prepares to tally credits. Education Week 18 (31), 17. Wilson, G. Y. (2000). Effects of Funding Equity on the Arizona Tax Credit Law Paper presented at the annual meeting of the Americ an Educational Research Association, in New Orleans, LA, April 24-28, 2000.Appendix Other Voucher and Tax Credit Plans and Proposals The voucher and tax credit plans discussed in the main text amount to just a small sampling of the plans underway nationally. Mo reover, the pace of reform has recently intensified; this year's legislative s essions feature at least 21 states with bills to start voucher programs and 18 conside ring proposals that would offer tax breaks to help cover the costs of private schoo ling (Bowman, 2000). Some of these follow usual voucher formats, some follow the Arizona model, and some tie vouchers to school performanceÂ—patterned after Flor ida's plan. This Appendix provides some context for the Arizona tax credit sc heme by offering an overview of these other voucher and tax credit plans and pro posals. (Note 8) Florida The nation's only statewide voucher program was approved in Florida in the summer of 1999, but it was almost immediately held by a state court to violate the Florida constitution ( Holmes v. Bush No. 99-3370, Fla. Cir. Ct., filed June 22, 1999). (Note 9) Under the plan, each public school was to receive a grade, from A to F. Students at schools that earn a grade of Â“FÂ” from the state two years out of four would be eligible for an Â“opportunity scholars hipÂ” worth at least $4,000 that could be used at a public, private, or religious sc hool. In the first year, only two schools Â“qualified,Â” both of them in Pensacola (Bow man, 2000). Private and parochial schools that might have accepted these st udents would have been prohibited from collecting additional tuition and b arred from requiring these students to participate in religious instruction, p rayer or worship. In its decision handed down on March 14, 20 00, the Florida state court relied on the state's education clause (language passed by voters in 1998) in holding that vouchers supporting attendance at private schools w ould unconstitutionally undermine Florida's goal of providing a free public education. This education clause provides in part, Adequate provision shall be made by law for a unifo rm, efficient, safe, secure, and high quality system of free publi c schools that allows students to obtain a high quality education and for the
19 of 24establishment, maintenance, and operation of instit utions of higher and other public education programs that the needs of the people may require. (Florida Constitution, Article IX, section 1.) The court's reasoning is expressly grounded in a lo ngestablished constitutional principle in Florida that, when the constitution di rects Â“how a thing shall be done, [this direction] is itself a prohibition against a different manner of doing itÂ” ( Holmes v. Bush at p. 7). That is, because the education clause d irects that the state's educational goals shall be obtained through free public schools, the use of vouchers (to private schools) to achieve this same aim is implicitly prohibited. The court therefore concluded, the statute provides that all students at designate d schools who wish to do so may leave the public school system and ins tead receive their publicly funded education in private schools that o ffer the same services as do the public schools. This program sup plants the system of free public schools mandated by the Constitution ( Holmes v. Bush at p. 14.) Given that most other states have education clauses similar to the above-quoted clause in the Florida constitution, this decision p otentially has far-reaching ramifications. Ohio In 1995, Ohio created a scholarship and tut oring program in Cleveland. The program included the following provisions, which ar e similar to those of the MPCP: (a) the amount of the scholarship is the less er of two numbers: the public, private or parochial school's tuition or a state-es tablished amount not in excess of $2,500; (b) students whose family income is below 2 00% of the maximum level (established by the state superintendent of public instruction) for low-income families qualify for 90% of the scholarship amount; (c) students whose family income is at or above 200% of that level qualify fo r 75% of the scholarship amount; (d) students may use the vouchers at the pu blic, private or parochial school of their choice; (e) participating schools m ust register with the state superintendent of public instruction; and (f) no mo re than 25% of the scholarships can be awarded to students enrolled in a private or parochial school at the time they apply for a scholarship, although the enabling legislation allows that proportion to eventually rise to 50%. This original legislation was struck down i n 1999 by the Ohio Supreme Court as unconstitutionally enacted (i.e., a technical fl aw, not directly concerning the constitutionality of the legislation's contents) ( Simmons-Harris v. Goff 711 N.E.2d 203, 1999). The Ohio court, however, also st ated that the program did not breach the separation of church and state in either Ohio or federal law. Accordingly, the legislation was (properly) re-enac ted, then challenged in federal courtÂ—following the same pattern that we now see in Arizona. This new lawsuit was successful. Just seven months after similar leg islation was stated to be constitutional by the Ohio Supreme Court, the feder al district court disagreed, ruling that it violates the federal establishment c lause (Simmons-Harris v. Zelman, 72 F. Supp. 2d 834, N.D. Ohio, 1999). That decision is presently on appeal.
20 of 24 Illinois In 1999, Illinois enacted legislation grant ing tax credits to parents of children in public, private or parochial schools. Under the law, parents may reduce their state income tax bill by 25 percent of whatever the y spend for their children's tuition, book fees, and lab fees. In order to be el igible for the tax credit, parents must spend at least $250, and the tax credit may no t exceed $500 per family. Illinois' tax credit program is presently being cha llenged in court ( Griffith v. Bower No. 99-CH-0049, Ill. Cir. Ct., filed July 12, 199 9). Iowa In 1987, Iowa enacted a law that allowed pa rents with a net income of less than $45,000 to claim a tax deduction of up to $1,0 00 for each dependent's acceptable education expenses. These acceptable exp enses include tuition and textbooks but exclude the costs of religious materi als. The state has since shifted from a deduction to a tax credit, and the income ce iling has since been eliminated. All parents may now claim a tax credit of up to 25% of the first $1,000 for each dependent's acceptable education expenses. Puerto Rico Pursuant to a 1993 Puerto Rico law, parents with annual incomes of less than $18,000 may receive vouchers for up to $1,500 towar d tuition at the public, private or parochial school of their choice. Howeve r, the Puerto Rico Supreme Court ruled in 1994 that this voucher program viola ted Puerto Rico's constitution. In 1995, however, Puerto Rico established the Â“Educ ational Foundation for the Free Selection of Schools, Inc,Â” a nonprofit corpor ation which provides financial aid for elementary and high school students in publ ic, private or parochial schools. Donors to the Educational Foundation are el igible for a tax credit up to $250 for individual taxpayers or $500 for corporations a nd partnerships. The amount of donations in excess of the credit can be used as a tax deduction. The program includes the following provisions: (a) the annual i ncome of a student's family cannot exceed $18,000; (b) the amount of education financial aid cannot exceed $1,500 per student; and (c) participating schools m ust be licensed by the General Council of Education and have an admission policy f ree of discrimination. Vermont and Maine Given their large areas containing small po pulations, Vermont and Maine have both enacted legislation allowing students wit h no nearby public school to attend private, non-parochial schools at state expe nse. Both programs have survived legal challenges to the exclusion of paroc hials from their programs. In Maine, both the Supreme Judicial Court o f Maine ( Bagley v. Raymond School Department 728 A.2d 127, 1999) and the U.S. Court of Appeals for the 1st Circuit ( Strout v. Albanese 178 F.3d 57, 1999), in two separate cases, have ruled that the exclusion does not violate parents' right of free exercise of religion and that the inclusion of religious schools in the program would violate the federal constitution's establishment clause. The Vermont ca se arose out of the 1996 decision by the town of Chittenden to pay the paroc hial school tuition for about a dozen families. In 1999, the Vermont Supreme Court ruled that Chittenden's program violated the clause of the Vermont constitu tion prohibiting Â“compelled supportÂ” of places of religious worship ( Chittenden Town School District v. Vermont Department of Education 738 A.2d 539 (1999)).
21 of 24 Pennsylvania In 1998, the Southeast Delco School Distric t, located near Philadelphia, Pennsylvania, adopted a voucher plan reimbursingÂ—up to $1,000 annual tuition per childÂ—parents who send their children to privat e and religious schools. On December 23, 1999, the Commonwealth Court of Pennsy lvania unanimously upheld a lower court's ruling that, under Pennsylva nia law, a local school board has no authority to initiate such a plan ( Giacomucci v. Southeast Delco Sch. Dist. 742 A.2d 1165 (1999)). Ballot Measures Ballot initiatives designed to create state wide voucher systems have failed in Michigan (1978), Oregon (1990), Colorado (1992) and California (1993). However, similar efforts continue in all these stat es. In fact, a Michigan group called Â“Kids First! Yes!,Â” announced in February th at it had collected the signatures necessary for a statewide vote in Novemb er on its initiative to allow vouchers for private and religious schools (Bowman, 2000). Proposed Legislation In Connecticut, a tuition tax credit bill h as been referred to committee. In Virginia, the legislature recently tabledÂ—until nex t yearÂ—a proposal that would allow parents of private school students to receive state incometax credits, starting at $500 in 2001 and increasing to $2,500 o ver five years. Legislators in at least seven statesÂ—California, Colorado, Georgia, N ew Mexico, Pennsylvania, Vermont, and WashingtonÂ—have proposed legislation s imilar to Florida's voucher law, although these efforts likely lost some steam after the Florida court's unfavorable decision. In New York City, Mayor Giuli ani included $6 million in this year's budget plan for an experimental voucher program. In Congress, Republican leadership in both houses have, in every recent session, been pushing for vouchers. For instance, i n the 106th Congress, Senator Jon Kyl (R-AZ) introduced a tuition tax credit bill (S.138) in the U.S. Senate for K-12 expenses. It would have given a tax credit to parents for their children's educational expenses and to other individuals who c ontribute to a nonprofit scholarship program to fund education for low-incom e students. The bill would phase in a credit up to $250 per individual (or $50 0 per joint return) by 2002. In the U.S. House of Representatives, Congressman Jim Rogan (R-CA) introduced a similar bill (H.R. 600) which allowed a much larger credit of $1000 per individual. When last I checked (in March, 2000), t he Senate bill had been referred to the finance committee; the House bill h ad been referred to the ways and means committee.About the AuthorKevin G. WelnerSchool of EducationUniversity of ColoradoBoulder, CO 80309-0249(303) 492-8370
22 of 24 E-mail: firstname.lastname@example.org B.A. University of California, Santa Barbara, 1985J.D. University of California, Los Angeles, 1988Ph.D. University of California, Los Angeles, 1997Kevin Welner is an Assistant Professor of policy, l aw, and evaluation at the University of Colorado at Boulder's School of Educa tion. His forthcoming book is entitled, Legal rights, local wrongs: When community control collides with educational equity published by SUNY Press. His homepage is at http://www.colorado.edu/education/contacts/faculty/ welner .Copyright 2000 by the Education Policy Analysis ArchivesThe World Wide Web address for the Education Policy Analysis Archives is epaa.asu.edu General questions about appropriateness of topics o r particular articles may be addressed to the Editor, Gene V Glass, email@example.com or reach him at College of Education, Arizona State University, Tempe, AZ 8 5287-0211. (602-965-9644). The Commentary Editor is Casey D. C obb: firstname.lastname@example.org .EPAA Editorial Board Michael W. Apple University of Wisconsin Greg Camilli Rutgers University John Covaleskie Northern Michigan University Alan Davis University of Colorado, Denver Sherman Dorn University of South Florida Mark E. Fetler California Commission on Teacher Credentialing Richard Garlikov email@example.com Thomas F. Green Syracuse University Alison I. Griffith York University Arlen Gullickson Western Michigan University Ernest R. House University of Colorado Aimee Howley Ohio University Craig B. Howley Appalachia Educational Laboratory William Hunter University of Calgary Daniel Kalls Ume University Benjamin Levin University of Manitoba Thomas Mauhs-Pugh Green Mountain College Dewayne Matthews Western Interstate Commission for HigherEducation William McInerney Purdue University Mary McKeown-Moak MGT of America (Austin, TX) Les McLean University of Toronto Susan Bobbitt Nolen University of Washington
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