ORTHODOX UNION APPLAUDS SUPREME COURT DECISION DISMISSING CHALLENGE TO ARIZONA EDUCATION SCHOLARSHIP PROGRAM;
“THE HIGH COURT UPHELD SCHOOL CHOICE TODAY”

Today, the Union of Orthodox Jewish Congregations of America, the nation’s largest Orthodox Jewish umbrella organization, applauded a ruling issued today by the Supreme Court of the United States in which it upheld an Arizona program which grants tax credits for contributions to school scholarship fund organizations.

The case, Arizona Christian School Tuition Organization v. Winn, involves a state program under which individuals receive a state-income-tax credit for contributing to student tuition organizations (“STOs”) that in turn use the funds to provide scholarships at non-public schools. The program had bi-partisan support when it began in Arizona, but was challenged in the courts by teachers unions and other advocacy groups as unconstitutional because many of the non-public schools to which the scholarship funds flow are religious schools. In 2008, the Arizona Supreme Court ruled the tax credit program unconstitutional and that decision was upheld by the U.S. Court of Appeals for the 9th Circuit.

Today, the High court, in a 5-4 opinion written by Justice Kennedy, overturned the 9th Circuit’s opinion. The majority found those suing to challenge the program lacked “standing” to bring the suit because funds were not being directly appropriated by the state. Rather, “Contributions result from the decisions of private taxpayers regarding their own funds,” wrote the court opinion. (Four justices dissented from the majority opinion.)

The Orthodox Union participated in this case when it joined with other prominent faith-community representatives in filing a brief with the U.S. Supreme Court in support of the constitutionality of Arizona’s education scholarship tax credit program. The “friend of the court” brief was drafted by two preeminent professors of constitutional law – Doug Laycock and Tom Berg – on behalf of the Orthodox Union as well as the U.S. Conference of Catholic Bishops, Christian Legal Society and others.

The friend of the court brief filed on behalf of the Orthodox Union and other groups contends that the lower court rulings are plainly inconsistent with many Supreme Court precedents that have repeatedly held that a government program which yields funds flowing to religious schools or other institutions is constitutional so long as there is “true private choice” built into the program. Here, taxpayers have the private choice whether to donate to an STO and the STO has the private choice as to which schools it will award scholarships to. This was a key component of the majority opinion’s rationale.

Nathan Diament, director of public policy for the Orthodox Union, issued the following statement:

“The Orthodox Union is very pleased with today’s ruling by the U.S. Supreme Court. The high court upheld school choice today. The principles of government respect for private choices in education and government neutrality in programs which can aid and support such private choices is a critical issue for the Orthodox Jewish community and other American faith communities.

In Arizona – and in other states such as Pennsylvania, Florida, Illinois and more – where we have worked with allies to create education tax credit programs such as these, millions of dollars in scholarship funds have been generated and many Jewish schools and students have received such scholarships as a result. We are seeking to initiate similar programs in New Jersey, Maryland and elsewhere. Thus, the Supreme Court’s decision in this case is critical not only for the constitutional issues under consideration, but for its real world impact upon our community. We are encouraged today and we will ramp up our efforts to replicate the Arizona education tax credit program in other states.”

[Editor’s note: The amicus curiae brief can be read here.]