Worth A Look: Arizona Christian STO v. Winn (2011) - from "It Followed Her To School One Day..."

The following is a first draft of one of the mini-chapters from an upcoming book covering the major "wall of separation" cases related to public education over the past century. The working title is "Have To" History: It Followed Her To School One Day...

We'll see how it actually turns out.

Worth A Look: Arizona Christian School Tuition Organization v. Winn (2011)

To obtain a determination on the merits in federal court, parties seeking relief must show that they have standing under Article III of the Constitution. Standing in Establishment Clause cases may be shown in various ways. Some plaintiffs may demonstrate standing based on the direct harm of what is claimed to be an establishment of religion, such as a mandatory prayer in a public school classroom… Other plaintiffs may demonstrate standing on the ground that they have incurred a cost or been denied a benefit on account of their religion…

For their part, respondents contend that they have standing to challenge Arizona’s STO tax credit for one and only one reason: because they are Arizona taxpayers. But the mere fact that a plaintiff is a taxpayer is not generally deemed sufficient to establish standing in federal court…

Few exercises of the judicial power are more likely to undermine public confidence in the neutrality and integrity of the Judiciary than one which casts the Court in the role of a Council of Revision, conferring on itself the power to invalidate laws at the behest of anyone who disagrees with them. In an era of frequent litigation, class actions, sweeping injunctions with prospective effect, and continuing jurisdiction to enforce judicial remedies, courts must be more careful to insist on the formal rules of standing, not less so…

The present suit serves as an illustration of these principles. The fact that respondents are state taxpayers does not give them standing to challenge the subsidies that {the law in question} allegedly provides to religious STOs. To alter the rules of standing or weaken their requisite elements would be inconsistent with the case-or-controversy limitation on federal jurisdiction imposed by Article III.

(from the Court’s Majority Opinion, by Justice Anthony Kennedy)

It’s not every day one has occasion to speak of Arizona as the birthplace of innovation or creative thinking, but in 1998 that’s precisely what it was – for better or worse.

The Fence of SeparationAs the Court’s reasoning in “school choice” cases increasingly focused on the role of parental decision-making as a type of “circuit breaker” between government funding and the various religious institutions it ended up supporting, clever state legislators came up with a variation on the theme – adding yet another “breaker” into the process. Rather than allot state resources to parents directly to then be spent at the institution of their choice (religious or not), the state would instead offer tax deductions for donations to an STO: “School Tuition Organization.” STOs were non-profits who would then distribute the funds to “deserving” students and families for use at schools of their choice.

It’s like a choice cake with choice icing and choice sprinkles on top, but none of the layers were quite touching each other... because “establishment.”

At issue in Arizona Christian STO v. Winn was not the constitutional validity of the system itself, but the right of Arizona taxpayers to object. It’s generally quite difficult for individuals to claim “standing” in a court of law – that is, to demonstrate that they’ve been specifically injured – based on being taxpayers. The Supreme Court has largely rejected the connection between paying taxes and not liking how those taxes are spent as far too tenuous to justify docket space. Tax dollars are gathered en masse and distributed as legislators see fit, making it impossible to establish that any given taxpayer’s contribution was impacted directly by any specific usage. On top of that, plaintiffs would need to prove that legislators didn’t offset the spending they didn’t like in some other way – by running a deficit, reducing or eliminating another program, or by the increased productivity and profitability of the universe as a result of the spending in question. If any of those might be true, it’s possible the plaintiff actually benefited from the action to which they were objecting. Ha! Didn’t think of that, did you, taxpayer?!

In short, “take it up with your elected representatives” has been the Court’s auto-response the vast majority of the time, and that precedent was not shattered here. Just to sprinkle in a little salt, the 5-4 majority also rejected the suggestion that tax credits to one person were the equivalent of a tax increase on everyone else – thus validating one of the primary goals of the set-up to begin with.

Needless to say, other states looking for creative ways to funnel more public money towards religiously-driven voters sat up and took note. To date, 18 states have some version of STOs taking money from public education for use in private, mostly religious, schools. Don’t worry though – they’re diverting it very, very indirectly.

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