High Court Mulls Religious Ed Credit


A Supreme Court hearing over Arizona’s embattled $500 tax credit for private schools, including parochial ones, is being closely watched by advocates of private tuition aid across the country.

The Orthodox Union filed a brief in August urging the high court to uphold the credit after Arizona’s state court and the U.S. Court of Appeals 9th Circuit ruled it unconstitutional.

But even if it is upheld, the chances of such a program taking effect in New York, the state with the largest population of Jewish day school students in the nation — estimated at 140,000 — are slim since legislators and activists have already gone down that road.

In 2006, the state legislature here shot down a $500 education tax credit proposed by then-Gov. George Pataki and instead passed a $300-per-child credit for all the state’s children. The state’s powerful teachers’ unions, and Assembly Speaker Sheldon Silver, have vigorously opposed any program seen as reducing funds for public schools.

Marvin Schick, a consultant on Jewish education for the Avi Chai Foundation, said that traditionally strict interpretation of the state’s Blaine Amendment, which prohibits any government aid to religious-affiliated education, as well as the state’s $9 billion budget deficit would make a bill for such a credit unlikely here.

“New York is not Arizona,” said Schick. “There is a more liberal attitude here in government that is more determined on total church-state separation. And, with the state cutting back … over the next couple of years the outlook is not good [for private school assistance].”

The Arizona law, passed in 1997, does not allow all private school individuals the deduction. To qualify, parents must donate to established, nonprofit school tuition organizations that award scholarships to private schools. Last year 53 such organizations received $51 million from donors, according to The Christian Science Monitor.

At issue in the Supreme Court case is whether those funds, as deferred taxes, belong to the government and should therefore be subject to the Establishment Clause barring entanglement in religion.

The Obama administration has implicitly supported the Arizona program, with acting U.S. Solicitor General Neal Katyal arguing that taxpayers who brought the court challenge do not have standing to challenge the law.

About half the private tuition organizations recognized by Arizona provide scholarships only to religious schools.

Marc Stern, the American Jewish Committee’s expert on matters of law and religion, said the selectivity of the tuition organizations and the state’s role in enabling them by encouraging donations poses a challenge for defenders of the law.

“Since, under Arizona law these [organizations] can limit themselves to giving out scholarships to religious schools, the argument is made that these corporations are in effect acting in place of the state, which can’t be in the business of limiting scholarships to religious institutions,” said Stern.

He added that the question over the standing of the plaintiffs could also set a precedent. “All the government is doing is not collecting taxes,” said Stern. “The question of if that’s the same as [the question of] not establishing religion remains up in the air.”

Nathan Diament, director of the Orthodox Union’s Institute for Public Affairs, filed its brief together with the U.S. Conference of Catholic Bishops and other supporters of private tuition aid arguing that the plaintiffs have no right to bring the case.

“To have the right to sue in federal court to have standing, you have to be injured,” said Diament, meaning harmed in some way by the existing law. He noted that if the court agrees with the solicitor general that the plaintiffs do not have standing simply as taxpayers “they may not even reach the questions of the Establishment Clause with his taxpayer program.”