WASHINGTON, DC (Alliance Defense Fund) - Alliance Defense Fund attorneys will defend Arizona's tuition tax credit program in the U.S. Supreme Court, the second time the matter has reached the high court in a lawsuit backed by the American Civil Liberties Union seeking to strike down the program. 

On Monday, the court agreed to hear the case after ADF attorneys filed a petition in February asking the justices to reverse portions of a decision by the U.S. Court of Appeals for the 9th Circuit, which ruled parts of the program unconstitutional.  ADF is asking that the suit be dismissed because the opponents have not proven that they have suffered any injury that would give them standing to bring a lawsuit over the challenged tax credit program.

ADF attorneys argue that the program--which allows state residents to claim a tax credit for donations to private organizations that provide scholarships to private schools--is constitutional because it involves individual, private choices and funding, not government action or money.

"Parents should decide what schools their children attend and where their money goes.  This constitutionally sound program allows families the liberty to choose what's best for their kids," said ADF Senior Legal Counsel David Cortman.  

"Those challenging Arizona parents' rights have suffered no legal injury, giving them no reason to file suit in the first place. This program is neutral; the state never touches the private money involved, and it is one of several popular school choice programs that offer Arizona kids real educational opportunities.  So why would the ACLU want to interfere with parents' rights to choose schools for their own kids?"

In April 2009, the 9th Circuit stopped short of ending the tuition tax credit program as demanded by the program's opponents.  Instead, the court stated that its constitutional concerns regarding the program are whether all school tuition organizations should be forced to fund both religious and non-religious organizations.  The court stayed its decision while the case is on appeal.

In response to claims by the ACLU and its allies that the program limits parental choice, ADF attorneys point out that the program's existing structure gives Arizonans a broad range of educational choices.  ADF attorneys argue that school tuition organizations, regardless of what kind of schools they fund, do not violate the First Amendment's Establishment Clause because they are private organizations that do not give out any government money.  They stress that Arizonans are free to choose other school tuition organizations that fund non-religious private schools, emphasizing that residents can even start such organizations on their own, if they so choose.

"Regardless of whether they are religious or non-religious, any type of private school can be legally funded by school tuition organizations, which distribute only private money," explained Cortman.  "This type of funding does not become unconstitutional just because non-religious organizations have not taken as much initiative to make use of the opportunity."

ADF attorneys filed the petition for certiorari with the U.S. Supreme Court in Arizona Christian School Tuition Organization v. Winn after a full panel of the 9th Circuit declined to hear an appeal of a three-judge panel's decision from May 2009.  ADF ally, the Institute for Justice, which has successfully defended several Arizona school choice programs, has played an integral part in this suit.