Battle over Legality of Tuition Tax Deductions for Families of Children Attending Private Schools

Orthodox supporters and non-Orthodox foes of government aid to private schools, specifically Jewish day schools, have squared off again in a renewal of their long-running legal fight over the constitutionality of such aid. The forum for the latest clash again is the United States Supreme Court,

At issue is a Minnesota state law which permits parents of pupils of elementary and secondary schools, both public and private, to claim as a deduction on their state income tax forms up to $700 per year of the cost of tuition and other educational services for their children

Minnesota parents of students attending schools in Minnesota, North and South Dakota, Iowa and Wisconsin may deduct up to $500 for each dependent in grades kindergarten to six, and up to $700 for each pupil in grades seven to 12 for tuition, textbooks and transportation costs. Such parents may also deduct from their state taxes outlays for summer school, driver education and tutoring. The law was passed in 1955.

The opposing sides have prepared friend of the court briefs. The Jewish Telegraphic Agency was told that, barring any abstentions from participation by any of the nine judges, a definitive ruling is certain and that it will be the first Supreme Court ruling on the constitutionality of any law which provides tax deductions for outlays by parents of children attending private schools.

BACKGROUND OF PRESENT CASE

The Minnesota case is at present before the Supreme Court after first rulings in district courts in St. Paul, Minnesota and a hearing in the Court of Appeals for the Eighth Circuit, sitting in St. Louis. The three courts upheld the constitutionality of the Minnesota law.

In the first of the initial lower court tests, which dealt with Minnesota Civil Liberties Union v. Roemer, a three-judge federal district court decided on June 19, 1978 that the Minnesota law was constitutional. Before 1976, any plaintiff raising a constitutional issue had the right to ask for a three-judge federal district court, an arrangement which made it possible to take such a case directly to the Supreme Court without having to bring the issue to a federal appeals court. The suit was filed before 1976.

However, the JTA was informed, the three-judge ruling was not appealed to the Supreme Court by the plaintiffs because they were reportedly uncertain whether the facts developed during the district court trial would provide the best vehicle for Supreme Court consideration.

The second hearing at the district court level before a single Judge, dealing with Van D. Mueller v. Clyde Allen, et al, developed when Mueller, as a St. Paul taxpayer, sued to overturn the Minnesota law. The district court ruled on May 13, 1981, that the law was constitutional,

It was that ruling which was appealed by Mueller to the Eighth District Circuit Court which ruled last April 30 that the Minnesota law did not violate the First Amendment ban on religion.

In response to the Supreme Court’s agreement to hear the case, the opposing sides filed friends-of-the-court briefs. The opponents’ brief contended that such deductions are just as unconstitutional as direct government grants to such schools. In response to that brief, a group of Orthodox organizations joined in a brief which argued that there is no difference between deductions for tuition and other related schooling costs for pupils of parochial schools and charitable contributions to such schools and other religious institutions.

The major sponsors of the opposing brief are the National Committee for Public Education and Religious Liberty (PEARL); the National Parent Teacher Association; the American Federation of Labor-Congress of Industrial Organizations (AFL-CIO); and the American Jewish Congress.

Each of the four major sponsors signed the brief on behalf of itself and a number of other organizations, including eight Jewish Federations, eight Jewish Community Relations Councils; and two Jewish Community Councils.

The brief for the law was written by Nathan Lewin, a Washington attorney who is vice president of the National Jewish Commission on Law and Public Affairs (COLPA). Joining in the COLPA brief are nine national Orthodox organizations.

A spokesman for COLPA said the Supreme Court could order and hear oral arguments and rule on the constitutionality of the Minnesota law during its current term, which ends next June; or the high court could schedule arguments and reach a decision during the next term, which begins in October and ends in June 1984.

AGUDATH STATEMENT SPARKS LATEST BATTLE

The latest battle on the deductions issue was sparked by a statement from Agudath Israel of America, one of the nine Orthodox agencies Joining in the COLPA brief, which charged that the Jewish organizations joining in the other brief were guilty of “irresponsible behavior” because they were “fighting the interests of Jewish education.”

The Orthodox agency added that it was “almost hypocritical to believe that Jewish fund-raising agencies would deny assistance to parents of children in Yeshivos at the same time that they continue to keep their purse strings knotted when funds are needed for Torah education, for which most of them provide only paltry, token allocations.”

The American Jewish Congress noted that the Minnesota law grants income tax deductions for education costs of parents of children attending both public and private schools. But, the AJCongress declared, because public schools are prohibited by law from charging for tuition, textbooks and transportation to and from school, the tax deduction benefit, in reality, affects only parents of private school pupils.

The opposition brief added that, in Minnesota, some 90 percent of all non-public schools are religious institutions, and that, in 1980, Minnesota taxpayers, taking advantage of the law, reduced their taxable income by $32 million.

The brief asserted that since the tax deduction benefit is not restricted to expenditures for secular items for religious schools, the Minnesota law violates the constitutional requirement of church-state separation. The brief cited earlier Supreme Court opinions declaring direct government aid to religious schools unconstitutional and contended the same principle should apply to the tax deduction option, on grounds such deductions should be considered equivalent to government grants. The COLPA brief stressed that a tax credit could arguably be viewed as providing direct government financial support, while a tax deduction or exemption did not involve direct government aid but represents a decision by the government not to tax potential sources of revenue.