Case could boost funding for private schools

Tuesday the US Supreme Court takes up a case that could provide the most significant boost to those supporting public funding for parochial schools since the high court's school-voucher decision two years ago.

The central issue in Hibbs v. Winn isn't the constitutionality of a tax-credit system in Arizona that helps fund parochial school tuition.

Rather, the issue is more technical: whether the federal courts can review determinations already made by state judges about whether such tax-credit systems violate the separation of church and state.

Still, the case is important because if the nation's highest court rules in Arizona's favor, it will eliminate an entire level of judicial review once available to those who oppose parochial-school tax-credit plans. Such a ruling would also provide a green light to those seeking increased government funding of religious schools, provided they have the state legislature's support and the state judiciary's approval.

The case is also significant because it touches on a much broader ideological struggle under way within the judiciary itself over the proper role of federal judges. At issue is just how aggressive a stance federal judges should take in cases involving state regulations that impact fundamental rights guaranteed by the US Constitution.

In the Arizona case, the Supreme Court of Arizona upheld the tax-credit program as constitutional in a 3-to-2 decision issued in 1999. Nonetheless, a group of taxpayers filed a new lawsuit challenging the program. Rather than filing in state court, the plaintiffs took their case to the federal level. Arizona objected, arguing that a 1937 law - the federal Tax Injunction Act - bars federal courts from asserting jurisdiction over matters involving a state's tax system. Lawyers for Arizona said that as long as the state provides an opportunity to challenge the tax system within its own courts (with appeal to the US Supreme Court), federal judges have no jurisdiction over such cases.

A three-judge panel of the Ninth US Circuit Court of Appeals disagreed. The tax-credit program is allegedly an impermissible government subsidy of religious schools in violation of the First Amendment's separation of church and state, the court noted.

The Tax Injunction Act was not intended to prevent federal judges from acting in cases where federal constitutional rights were being violated by state policies, the court said in a 3-to-0 decision. The panel opinion was written by Judge Stephen Reinhardt, who wrote that federal judges must be free to operate as "guardians of the people's federal rights."

When the entire Ninth Circuit court declined to rehear the case, Judge Andrew Kleinfeld issued a dissent. In it he took issue with the Ninth Circuit panel's patronizing attitude toward state judges.

"State judges take the same oath to uphold the federal Constitution that we do, and like us are subject to federal Supreme Court review," Judge Kleinfeld wrote. "The implication of the panel's remark about the federal courts' role as 'guardians of the people's federal rights' seems to be that we are the only such guardians, or that we are guardians of the Platonic sort. We are not."

Forty states filed a friend-of-the-court brief supporting Arizona. They take no position on the parochial-school funding issue. Instead, they urge the high court to make clear that the Tax Injunction Act bars federal court interference in state tax matters. "State courts should be respected in their ability to administer their own tax systems, and the federal courts should not interfere. That is based on long-standing principles of mutual respect that one court system should have for another," says Joshua Carden of the Alliance Defense Fund of Scottsdale, Ariz., which filed a friend-of-the-court brief on Arizona's side.

A different view is reflected in a friend-of-the-court brief filed by Americans United for the Separation of Church and State and People for the American Way Foundation. They urge the court to permit federal court review in such cases. A high-court ruling supporting Arizona would "mark a radical departure from the court's Establishment Clause [church-state] jurisprudence to date and gravely weaken civil rights protections," says Ayesha Khan in the Americans United brief to the court.

The NAACP Legal Defense and Educational Fund says in its friend-of-the-court brief that the intervention of federal courts was essential to the civil rights movement following the high court's landmark 1954 decision in Brown v. Board of Education. Many states used state tax-credit programs in an effort to bypass federal desegregation orders by using the tax funds to support all-white private schools, the brief says. "In none of these suits was the Tax Injunction Act ... a bar to federal jurisdiction," says Norman Chackin in the brief.