Groups Urge Arizona Supreme Court to Review Legality of Arizona Corporate Tax Credit Program

Affiliate: ACLU of Arizona
May 13, 2009 12:00 am

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PHOENIX – Saying that recent court decisions demonstrate the need to review the constitutionality of Arizona’s corporate income-tax-credit scholarship program, a coalition of education and civil rights groups today asked the Arizona Supreme Court to strike down as unconstitutional a program that allows corporations to reduce their tax payments in exchange for making donations to support scholarships to private, sectarian schools.

In their 13-page petition, the American Civil Liberties Union (ACLU) of Arizona, the Arizona School Board Association and the Arizona Center for Law in the Public Interest argue that the Arizona Supreme Court should review the constitutionality of the program because the court struck down two voucher programs earlier this year for violating the state’s ban on public aid for private schools. In a separate federal case challenging that the individual tax credit program, the Ninth Circuit Court of Appeals ruled that program lacks religious neutrality under federal law.

Both of those programs are similar to the corporate-income-tax-credit program and siphon public funds from the state treasury into the coffers of schools that are not free, that are not open to all children, and that require religious instruction. The individual and corporate tuition tax credit programs rely on the same “school tuition organizations” (STO) to distribute scholarships for students to attend non-public schools. On paper, the STOs must allow the students “to attend any qualified non-public school of their parents’ choice.” However, the federal appeals court found that, in practice, the individual tax credit program falls short because it actually discriminates on the basis of religion.

“No matter how you describe them, all three programs have the same thing in common: they force taxpayers to subsidize sectarian institutions in violation of both state and federal laws,” said ACLU of Arizona Cooperating Attorney Marvin Cohen, who is a partner with the law firm of Sacks Tierney P.A. “It’s apparent that the Legislature enacted these “school choice” programs in order to benefit religious schools at the expense of public schools and non-sectarian private schools All three programs are part of a political and ideological crusade aimed at abandoning the public schools, subsidizing sectarian institutions with taxpayer dollars and discriminating on the basis of religion.”

The ACLU argues the corporate income-tax-credit program violates both the Arizona Constitution (Article 9, Section 10 and Article 11, Section 1), which prohibits the use or diversion of public money in aid of private or sectarian schools, and the Establishment Clause of the U.S. Constitution, which prohibits government from supporting or favoring religious institutions.

The ACLU, ASBA and Arizona Center for Law in the Public Interest filed the original lawsuit challenging the corporate income-tax-credit program in September 2006. The case, which was filed on behalf of four parents with children in public schools, was dismissed by a superior court judge and later by a state appeals court. In the meantime, a coalition of parents, educators and civil rights groups, including the ACLU, moved forward with successful litigation in state court challenging vouchers. In late March, the Arizona Supreme Court struck down the state school voucher scheme in Cain v. Horne. Several weeks later, the Ninth Circuit ruled on the individual tuition tax credit program. This case, Winn v. Garriott, is moving forward in federal court based on the strong indication of unconstitutionality by the unanimous federal appeals panel.

The petition filed in today’s case, Christie A. Green, et al. v. Gale Garriott, is available online at:

Lead counsel in today’s lawsuit is ACLU of Arizona cooperating attorney Marvin S. Cohen. Tim Hogan, of the Arizona Center for Law in the Public Interest, and Christopher Thomas, General Counsel and Director of Legal Services for the Arizona School Boards Association, also are serving as co-counsel in this lawsuit.

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