Court's door open for more voucher cases

The US Supreme Court has set the stage for a new round of contentious litigation over the constitutionality of providing public tax revenue to parochial schools.

Two years ago in a landmark decision, the high court upheld a school voucher program in Cleveland against allegations that it violated the separation of church and state. This week, the justices opened the door for what may become the next major test of the high court's emerging jurisprudence dealing with government aid to religious schools.

The case involves a federal court challenge to a tax-credit program that primarily benefits parochial schools in Arizona. At issue in Hibbs v. Winn was whether federal courts have jurisdiction to hear cases challenging the state tax-credit program.

In the 5-to-4 decision Monday that surprised many legal analysts, Justice Sandra Day O'Connor, joined the court's liberal wing to provide the decisive fifth vote necessary to uphold a federal appeals court ruling that Arizona's tax-credit setup can be challenged in federal court.

The decision is an important victory for those seeking to outlaw tax-credit and school-voucher plans as impermissible government entanglement with religion. At the same time it is a major setback to supporters of public aid to parochial schools.

"How many times do we have to win this before it is over?" asks Benjamin Bull of the Alliance Defense Fund, a Scottsdale, Ariz., conservative advocacy group supporting the tax-credit program.

Had Arizona officials prevailed, the case might have effectively insulated from federal court scrutiny any future state tax-credit programs favoring religious schools - not just in Arizona but nationwide.

By making clear that there is federal court jurisdiction over state tax-credit programs, the high court has prepared the way for a full array of legal challenges in federal district and appeals courts.

"The court is upholding the principle that federal rights can be vindicated in federal courts. That is the bottom line in this case," says Judith Schaeffer of People for the American Way, a liberal advocacy group in Washington, D.C., opposed to school-voucher and tax-credit plans.

At the center of the case is an Arizona tax-credit program that results in substantial state tax revenues flowing to religious schools. The state's highest court ruled 3 to 2 that the tax-credit program did not violate the separation of church and state because it functions as a result of the private choices of taxpayers.

A second group of plaintiffs filed a similar lawsuit, but this time they bypassed the Arizona courts. They took their fight to the federal courts, hoping to find more sympathetic judges.

Although a federal judge ruled that under the Tax Injunction Act he had no jurisdiction to hear the case, a three-judge panel of the Ninth US Circuit Court of Appeals disagreed. The panel declared that federal judges have the necessary authority to determine whether a state tax-credit system violates the US Constitution.

In appealing to the US Supreme Court, Arizona officials said the Tax Injunction Act requires that state tax matters be left to state lawmakers and state judges - not federal judges. Forty other states endorsed Arizona's position.

Writing for the majority, Justice Ruth Bader Ginsburg rejects Arizona's argument. She cites the key role in the 1950s and 1960s of federal judges in overcoming state attempts to use state tax laws to preserve the outlawed policies of separate but equal.

"It is hardly ancient history that states, once bent on maintaining racial segregation in public schools ... fastened on tuition grants and tax credits as a promising means to circumvent Brown v. Board of Education," Justice Ginsburg writes.

In a dissent, Justice Anthony Kennedy accuses the majority of treating the state courts like "second rate constitutional arbiters, unequal to their federal counterparts." He says, "State courts are due more respect than this."