A groundbreaking Arizona program providing tax breaks for donations for private school scholarships has been dealt another setback, as a federal appeals court let stand a ruling that revives a constitutional challenge.
According to an order released Oct. 21, a majority of participating judges on the U.S. Court of Appeals for the 9th Circuit declined to have a larger panel review a unanimous April ruling that the decade-old and first-in-the-nation program could be unconstitutional by favoring religion.
A dissent listed eight judges voting to have an “en banc” review, but the order did not specify how many judges were in the majority. Nor did the court clerk’s office immediately return a call for comment on how many of the court’s 27 active judges voted.
The Arizona ruling, in the case of Winn v. Garriott, comes as, across the country, such tax-credit-supported scholarships are seen as fast outpacing vouchers as a state policy tool for promoting private school choice. (“Growth of ‘Neovouchers’ Sparks Debate Over Policies,” Jan. 7, 2009.)
At least seven states—Arizona, Florida, Georgia, Indiana, Iowa, Pennsylvania, and Rhode Island—have such tax-credit programs, for individuals, corporations, or both, according to research conducted by Arizona legislative aides.
Arizona’s 1997 law provides dollar-for-dollar breaks on state income taxes for donations to school tuition organizations.
Supporters of the law contend it gives Arizona students a wide range of education options.
Challengers argue that the law has had the practical effect of channeling a disproportionate amount of donations to sectarian scholarship groups, which funnel grants to students attending religious schools.
The Arizona Supreme Court in 1999 upheld the constitutionality of the law. The current case concerns how it is being implemented.
A lawyer for supporters of the program, Tim Keller of the Institute for Justice, said the dissent made a strong case for [U.S.] Supreme Court review.
A version of this article appeared in the October 28, 2009 edition of Education Week as Scholarship Boon at Risk in Arizona