Ted Simons: An opinion from the Ninth Circuit Court of Appeals in another case will be decided Wednesday by the U.S. Supreme Court. On cases challenging Arizona's Tuition Credit Law. A dollar for dollar donation for donations they make. These STOs use the money for grants and scholarships to send kids to private schools. Based on information that some STOs limit their scholarships to religious schools, the Ninth Circuit concluded that Arizona's Tax Credit Law is an unconstitutional endorsement of religion. Here to talk about that are Clint Bolick, an Attorney for the Goldwater Institute and President and Executive Director of the Arizona School Choice Trusts, an STO that intervened on behalf of the defendants in this case and Chris Thomas, General Council and Director of Legal Services are for the Arizona School Boards Associations which has supported legal challenges to the tax credit law.
Clint Bolick and Chris Thomas: Good to be here.
Ted Simons: I know that we've talked about this before on the program, regarding the constitutional nature of this program but there's a concern whether or not taxpayers even have the standing to take this thing and sue on behalf of this particular -- or against this particular idea. Do they have a standing?
Clint Bolick: I believe they do. That's well established in precedent. And what's really, really odd is that the Obama administration entered this case on the side of the private school scholarships. Which I'm really, really happy about, but then they took the additional step of staying that under the establishment clause, taxpayers do not have standing. That's a pretty bold position and one that's typically more conservative than the Obama Administration.
Ted Simons: The establishment clause, separation of church and state, what do you think about the standing for taxpayers here?
Chris Thomas: Well, we agree with Mr. Bolick on this one. We think there's standing here. If you have to make it particularized for a particular taxpayer in terms of showing personal injury, each time, I think in essence, you'll never get any kind of enforcement with regard to the Establishment Clause and going back to 1968 that the Establishment Clause is unique in terms of the First Amendment.
Ted Simons: Is this the kind of case that could look at standing and go in a direction no one expected?
Chris Thomas: That's certainly possible. I think most people watching this case carefully see that the court may be taking this opportunity to blow on the whole standing argument.
Clint Bolick: I agree with that. The establishment clause jurisprudence is a mess. It’s probably the biggest mess of any part of American law. It's the part that teals with whether it's permissible or not and the easiest way to get rid of that in one swell swoop, taxpayers cannot challenge these aid programs and so forth.
Ted Simons: Standing, not with standing, why is the program unconstitutional?
Chris Thomas: For a number of reasons, we don't think it meets the previous precedent of the Zellman Case, which was the case, I think 1999 or so, I believe, that was a case where vouchers were found to be constitutional but in that program in Cleveland, we thought it was unique. It was a failing school district and we have students that were poor, did not have means, and they had a targeted program that allowed them to attend either a private school or public school of their choosing. That was neutral with regard to religion and that was validated by the Supreme Court in a 5-4 decision. We think this one favors disproportionately private religious schools. The last count was 93% of these funds do benefit students who attend religious private schools.
Clint Bolick: I rarely make predictions about cases I'm involved with. We're going to win this one. Zellman upholding school vouchers, approves this but a case in 1983 was almost entirely on point involving deductions for private school tuition. They're 97% of the deductions were used for religious schools. And this case, was upheld, this program was upheld by the Arizona Supreme Court in a First Amendment challenge, the U.S. Supreme Court denied review then. It's only the Ninth Circuit that got this wrong. It's the only court that's struck down one of these kinds of programs and the U.S. Supreme Court will do what it usually does with Ninth Circuit decisions -- overturn it.
Ted Simons: Most of the scholarship monies seem to be going to students at religious schools. How is that not a separation of church and state?
Clint Bolick: The organization that I'm the chairman of, the Arizona School Choice Trust provides scholarships for any private school in the state, religious or non-religious, but the U.S. Supreme Court repeatedly said it's not where you add things up at the end of the day, it's who is making the decision. In this case, it's parents choosing to apply for scholarships and taxpayers choosing to donate their money, just like you get a tax donation if you donate to your church. That's 100% of that deduction goes your church. They're not looking at the math. They're looking at who is the decision maker.
Ted Simons: The idea that these are choices, parents are making these choice choices, how is that not --
Chris Thomas: There's a few things that parents can't choose. For instance, public schools are not part of this system. There's a Public School Tax Credit but that's to benefit extracurricular activities. $200 per individual taxpayer as opposed to $500. There's a big difference. In the Zellman situation, the court case on vouchers, those students could have gone to the public school of their choosing as well and which was -- which is different because they didn't have an open enrollment in Cleveland.
Clint Bolick: And no public schools were participating in the program so the only choices were private schools among which religious schools were overwhelmingly participating.
Ted Simons: If the public schools were participating and all things equal, would you still have a problem with this?
Chris Thomas: We have a problem in a state where we spend less money on public education than almost any other state. We think our Arizona constitution which has a high bar with regard to money going to private schools is correct, which is why our Arizona Supreme Court found the vouchers unconstitutional.
Clint Bolick: And our Arizona Supreme Court found this program permissible under the Arizona Constitution. If all public schools were doing this job, we probably wouldn't have a program like this. In my view, it's not a question of where a child is being educated, it's whether they're being educated.
Ted Simons: I'm hearing a lot of machinations -- but it's an unconstitutional endorsement of the state of religion when you get down to it?
Clint Bolicks: Then the G.I. bill is unconstitutional. You can use it for religious schools and even use it to study for the ministry. None of those things are unconstitutional and this is not unconstitutional because it's the individual who is choosing how to spend his or her resources and in the case of tax credits, the money never enters the treasury of state government, which is important.
Ted Simons: The idea it doesn't come directly from the treasury, how does that play?
Chris Thomas: The state is saying you can give a dollar to us or an organization of your choosing that meets this finite criteria. To argue it's not a tax dollar, maybe in a specific sense, but we think it's a subterfuge.
Ted Simons: Any thoughts, predictions on what the Supreme Court is going to do?
Chris Thomas: I agree with Clint in terms of the Ninth Circuit's track record but they had a good session last year. Who knows, maybe they'll come back again.
Clint Bolick: We'll win this case. The big question is the one we opened with -- will taxpayer standing be abolished? There's four conservative votes for that position. And I wonder if a liberal is going to listen to the Obama Administration and possibly get rid of that doctrine. Great discussion.