School Climate & Safety

Justices Tackle Tax Credits, Violent Video Games

By Mark Walsh — November 08, 2010 5 min read

The U.S. Supreme Court last week took up the constitutionality of two very different state laws meant to aid or protect children.

One is Arizona’s tax credit for contributions to organizations that provide private school scholarships, including for students in religious schools. The other is California’s ban on the sale of violent video games to minors.

By the end of the separate arguments, it was clear that the justices were divided, and not always along their usual conservative and liberal lines.

Under Arizona’s 13-year-old tuition-aid plan, taxpayers can receive a dollar-for-dollar credit of up to $500 (or $1,000 for married couples) on their state income-tax returns for donations to “school tuition organizations,” or STOs. Such groups may limit their grants to students who will use them at religious schools. In 2008, some $54 million in scholarships was awarded, according to the state. The Arizona Republic newspaper reported that 93 percent of the aid that year went to students in religious schools.

“Our claim is that state money is being given to the beneficiaries of a state spending program on the basis of religion,” Paul Bender, a lawyer representing Arizona taxpayers who have challenged the program as an unconstitutional establishment of religion, told the justices in Arizona Christian School Tuition Organization v. Winn (Case No. 09-987).

The program was defended in the Supreme Court last week both by the state and the Obama administration, which argued not only that the tax credits are a neutral program that does not aid religion, but also that the taxpayer challengers lack legal standing to do so.

“Not a cent of [challengers’] tax money goes to fund religion” under the Arizona program, said acting U.S. Solicitor General Neal K. Katyal.

‘Modest’ or ‘Complicated’?

Several justices saw no constitutional problem with the fact that some of Arizona’s school tuition organizations limit their aid to religious schools. Justice Antonin Scalia said the decision to contribute to such a religiously affiliated group was a private decision by the taxpayer and didn’t raise the specter of religious discrimination by the government.

Justice Samuel A. Alito Jr. observed that “this is a very modest tax credit.”

The Supreme Court in the 1983 case of Mueller v. Allen upheld a Minnesota tax deduction for money parents spent on their own children, even when 97 percent of the tuition funds were going to religious schools. In Zelman v. Simmons-Harris in 2002, the justices upheld an Ohio program providing vouchers for poor children in Cleveland to attend private schools, including religious schools.

The court’s more liberal members appeared troubled by the Arizona program.

Justice Elena Kagan, weighing her first education case as a member of the high court, told Paula S. Bickett of the Arizona attorney general’s office that she found it “puzzling” that Arizona had adopted such a complex tax-credit program for private school tuition aid instead of “typical” tuition vouchers.

“This is so much more complicated and unusual,” Justice Kagan said.

Ms. Bickett noted that the Arizona Constitution bars any direct aid to private schools and said the tax-credit program encourages contributions for tuition not just from parents but also from other taxpayers.

Justice Sonia Sotomayor told Mr. Katyal that the program appeared to involve “taxpayer dollars paying for religion.”

Justice Anthony M. Kennedy, usually the court’s critical center vote, wondered whether the STOs were so entwined with the government that their decisions on where to spend scholarship dollars amounted to “state action.”

“The state has all sorts of rules about what an STO has to be,” he said. “The state provides the mechanism through the credit for the funding.”

A chief argument of Mr. Katyal was that “there is no taxpayer standing in this case.”

Taxpayers generally may not challenge government spending decisions based on that status alone, though a 1968 court ruling created an exception that allows taxpayers to challenge a program of direct grants to religious organizations.

Justice Kagan scrapped with Mr. Katyal over the implications of limiting taxpayer standing to challenge a program such as Arizona’s.

Meanwhile, at issue in the California case, Schwarzenegger v. Entertainment Merchants Association (No. 08-1448), is a 2005 statelaw that defines violent games as those that include “killing, maiming, dismembering, or sexually assaulting an image of a human being,” if the game appeals to the “deviant or morbid interest of minors” and lacks “serious literary, artistic, political, or scientific value for minors.”

The law, not yet enforced, bars retail outlets from selling or renting such games to anyone younger than 18, with possible fines of up to $1,000 per violation.

‘Deviant Violence’

California seeks to regulate games with a “deviant level of violence … that can be no less harmful to minors” than the type of sexually explicit material that the Supreme Court has said may be kept from minors, Zackery P. Morazzini, a state deputy attorney general defending the law, told the justices.

Paul M. Smith, a Washington lawyer arguing on behalf of the video-game makers and retailers who challenged the law as an infringement of the First Amendment’s free-speech clause, said California has “not shown any problem, let alone a compelling problem, requiring regulation here in a world where parents are fully empowered already to make these calls” on whether their children should have access to violent games. Justice Scalia was among the most troubled by the law, asking what other media violence might be open to censorship.

“Some of the Grimms’ Fairy Tales are quite grim, to tell you the truth,” Justice Scalia said. “Are you going to ban them, too?”

Mr. Morazzini said no, that the difference between violence in books, movies, and music, on the one hand, and video games on the other was the interactive nature of the games, “where the young person is the aggressor.”

Justice Kennedy said, “You are asking us to go into an entirely new area [of speech regulation] where there is no consensus.”

Justices Ruth Bader Ginsburg, Sotomayor, and Kagan also expressed concerns.

Chief Justice John G. Roberts, Jr., and Justices Stephen G. Breyer and Alito, appeared sympathetic to California’s efforts.

With video games, “the child is doing the killing. The child is doing the maiming,” the chief justice said. “And I suppose that might be understood to have a different impact on the child’s moral development.”

Justice Alito, alluding to games in which body parts are put through a meat grinder, said, “We have a new medium that could not possibly have been imagined when the First Amendment was ratified.”

Rulings in both cases are expected by June.

A version of this article appeared in the November 10, 2010 edition of Education Week as Justices Tackle Tax Credits, Violent Video Games

Let us know what you think!

We’re looking for feedback on our new site to make sure we continue to provide you the best experience.

Events

This content is provided by our sponsor. It is not written by and does not necessarily reflect the views of Education Week's editorial staff.
Sponsor
Future of Work Webinar
Digital Literacy Strategies to Promote Equity
Our new world has only increased our students’ dependence on technology. This makes digital literacy no longer a “nice to have” but a “need to have.” How do we ensure that every student can navigate
Content provided by Learning.com
Mathematics Online Summit Teaching Math in a Pandemic
Attend this online summit to ask questions about how COVID-19 has affected achievement, instruction, assessment, and engagement in math.
School & District Management Webinar Examining the Evidence: Catching Kids Up at a Distance
As districts, schools, and families navigate a new normal following the abrupt end of in-person schooling this spring, students’ learning opportunities vary enormously across the nation. Access to devices and broadband internet and a secure

EdWeek Top School Jobs

Speech Therapists
Lancaster, PA, US
Lancaster Lebanon IU 13
Elementary Teacher
Madison, Wisconsin
One City Schools
Elementary Teacher - Scholars Academy
Madison, Wisconsin
One City Schools

Read Next

School Climate & Safety When Toxic Positivity Seeps Into Schools, Here's What Educators Can Do
Papering over legitimate, negative feelings with phrases like "look on the bright side" can be harmful for teachers and students.
6 min read
Image shows the Mr. Yuck emoji with his tongue out in response to bubbles of positive sayings all around him.
Gina Tomko/Education Week + Ingram Publishing/Getty
School Climate & Safety Opinion Teaching's 'New Normal'? There's Nothing Normal About the Constant Threat of Death
As the bizarre becomes ordinary, don't forget what's at stake for America's teachers during the COVID-19 pandemic, writes Justin Minkel.
4 min read
14Minkel IMG
Gremlin/E+
School Climate & Safety Letter to the Editor Invisibility to Inclusivity for LGBTQ Students
To the Editor:
I read with interest “The Essential Traits of a Positive School Climate” (Special Report: “Getting School Climate Right: A Guide for Principals,” Oct. 14, 2020). The EdWeek Research Center survey of principals and teachers provides interesting insight as to why there are still school climate issues for LGBTQ students.
1 min read
School Climate & Safety As Election 2020 Grinds On, Young Voters Stay Hooked
In states like Georgia, the push to empower the youth vote comes to fruition at a time when “every vote counts” is more than just a slogan.
6 min read
Young people celebrate the presidential election results in Atlanta. Early data on the 2020 turnout show a spike in youth voting, with Georgia, which faces a pair of senatorial runoffs, an epicenter of that trend.
Young people celebrate the presidential election results in Atlanta. Early data on the 2020 turnout show a spike in youth voting, with Georgia, which faces a pair of senatorial runoffs, an epicenter of that trend.
Brynn Anderson/AP