Arizona: School Choice Case Wins at U.S. Supreme Court

This Supreme Court decision is only one of many pieces of good news for this movement for fairness and choice in education

The effect of the US Supreme Court ruling is to uphold the Arizona legislation and give the green light to parental or school choice. It also gives direction to other States considering desperately needed educational reform. This decision is a huge boon for parental choice in education or "school choice", especially when the policy objective is attained through the vehicle of tax credits.

P>WASHINGTON, DC (Catholic Online) - On Monday, April 4, 2011 the United States Supreme Court reversed the Ninth Circuit Court in the case of Arizona Christian School Tuition Organization v. Winn. In 2009, the 9th U.S. Circuit Court of Appeals held that the program was unconstitutional.  Attorneys for the state of Arizona and several other parties then asked the US Supreme Court to review the case. Justice Anthony Kennedy wrote the majority opinion of the Court. It reversed based upon the legal doctrine of standing, which considers whether the parties have a right to bring the underlying cause of action:

"Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so.

"Making the Article III standing inquiry all the more necessary are the significant implications of constitutional litigation, which can result in rules of wide applicability that are beyond Congress' power to change. The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that §43-1089 allegedly provides to religious STOs.(School Tuition organizations)... The judgment of the Court of Appeals is reversed. The judgment of the Court of Appeals is reversed. It is so ordered."

Justice Kagan wrote a dissenting opinion joined by Justices Ginsberg, Breyer and Sotomayor. It read in part, "These litigants lack standing, the majority holds, because the funding of religion they challenge comes from a tax credit, rather than an appropriation. A tax credit, the Court asserts, does not injure objecting taxpayers, because it "does not extract and spend [their] funds in service of an establishment.. This novel distinction in standing law between appropriations and tax expenditures has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective-to provide financial support to select individuals or organizations."

The opponents of school choice are now trying to argue that because the decision only addressed the standing issue, it has less importance. However, the effect of the US Supreme Court ruling is to uphold the Arizona legislation and give the green light to parental or school choice. It also gives direction to other States considering desperately needed educational reform. This decision is a huge boon for parental choice in education or "school choice", especially when the policy objective is attained through the vehicle of tax credits.

The oral arguments were heard on November 3, 2010. The Court was asked to consider the constitutionality of an Arizona law which gave residents a State tax credit when they donated to what were called "School Tuition organizations." These organizations in turn provided assistance to students. Arizona had at least 55 of these "School Tuition Organizations". They had distributed $50 million to 27,000 students. These grants enabled needy students to attend 370 private schools in grades K-12. This included religious schools, if the parents so chose. In other words, it was the parents who decided where to send their children to school, not the Federal or the State government. The first government of the family was given its proper place and the principle of subsidiarity was applied properly. 

The Catholic Church operated two such scholarship organizations. In an interview in 2010 Ron Johnson, the Executive Director of the Arizona Catholic Conference called parental choice in education "one of our largest priorities." He noted that similar organizations exist for other religiously affiliated schools. In fact, under the State program any religious or private entity could establish such a scholarship organization in order to distribute such funds. The Arizona program began in 1997. It had successfully overcome repeated efforts by the ACLU to strike it down.

The ACLU argued that the very fact that religiously based schools were even involved in the program violated the Establishment Clause of the First Amendment to the United States Constitution. This approach sets the establishment clause on its head. It was intended by the framers to prevent the State - or the Federal - government from forcing adherence to one State or National religion. In that sense it was meant to be an "anti-establishment" clause. The ACLU simply wants to prevent religious people and institutions from participating fully in society. It also does not respect for the primacy of parents in the education of their children.

Advocates of the program argued that the government did not collect or distribute the scholarship funds. Rather, it was handled entirely by individuals and private organizations. Further, no one religion was favored over another. Religious schools were simply allowed to be a part of the program, along with many other options. In 2009, the 9th U.S. Circuit Court of Appeals held that the program was unconstitutional and it was that action which has now been reversed by the US Supreme Court.  Attorneys for the state of Arizona and several other parties asked the US Supreme Court to review the case.

The issue of "School Choice" is an idea whose time has clearly come. I prefer the term "Parental Choice" because it emphasizes that Parents are the ones who should make the educational decision for their children. They are the first teachers of their children. Some who oppose parental choice or school choice are people entrenched in the current federalized educational bureaucracy and threatened by competition. However, increasingly people of every walk of life admit the obvious, our educational system is broken.

I am an ardent supporter of "Parental Choice in Education". However, I am not against government. Rather, I insist that government begins in the family. Any good governance must recognize the first government of the family and follow the social ordering and good governance principle of subsidiarity. That principle reminds us that good government is bottom up, not top down, deferring first to the smallest governing unit; not usurping but empowering and helping families.

However, I am not against government. Rather, I insist that government begins in the family. Any good governance must recognize the first government of the family and follow the social ordering and good governance principle of subsidiarity. That principle reminds us that good government is bottom up, not top down, deferring first to the smallest governing unit; not usurping but empowering and helping families.

The current overly federalized approach to the provision of education in the United States is failing. Statistics and experience confirm the obvious. It is time for a change and parental (school) choice is that change. It means affirming again, as a matter of public policy and legislation, that Parents are the ones who should be able to make the choice of how to best extend their own teaching mission outside of the home.

Education outside of the home is an extension of the parental role. Those who provide it should recognize and defer to the parents' primary role in the educational mission. The children being educated are not, in the words of the US Supreme Courts' Wisconsin v Yoder decision "....mere creatures of the State". The family is the first government and the first school house. We have forgotten that objective truth as a Nation and we are reaping the bad consequences.

In his Apostolic Exhortation on the family, "Familiaris Consortio", the Venerable John Paul wrote: "The right and duty of parents to give education is essential, since it is connected with the transmission of human life; it is original and primary with regard to the educational role of others, on account of the uniqueness of the loving relationship between parents and children; it is irreplaceable and inalienable, and therefore incapable of being entirely delegated to others or usurped by others..."

In his "Letter to Families" the late Pope wrote "Parents are the first and most important educators of their own children, and they also possess a fundamental competence in this area; they are educators because they are parents. They share their educational mission with other individuals or institutions, such as the Church and the State. But the mission of education must always be carried out in accordance with a proper application of the Principle of Subsidiarity.

"This implies the legitimacy and indeed the need of giving assistance to the parents, but finds its intrinsic and absolute limit in their prevailing right and actual capabilities. The principle of subsidiarity is thus at the service of parental love, meeting the good of the family unit. For parents by themselves are not capable of satisfying every requirement of the whole process of raising children; especially in matters concerning their schooling and the entire gamut of socialization."

He underscored the vital application of the principle of subsidiarity and its application to the education of children in a just society writing, "Subsidiarity thus complements paternal and maternal love and confirms its fundamental nature, inasmuch as all other participants in the process of education are only able to carry out their responsibilities in the name of the parents, with their consent and, to a certain degree, with their authorization."

Parents are the first teachers and the family is the first schoolhouse. Parental choice in education is right for our children, right for our parents and right for our Nation. This Supreme Court decision is only one of many pieces of good news for this movement for fairness and choice in education. Also this past week, Indiana passed sweeping school choice legislation and Speaker John Boehner made good on his promise of reappropriating funds for the Washington DC Opportunity Scholarship program.

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