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Jeb Bush III: The voucher carve-out edition

When he called on the state Legislature earlier this week, former Florida Gov. Jeb Bush credited the “threat of vouchers” with spurring progress in his state’s struggling schools.

Jeb Bush discussing Florida education reforms with Minnesota lawmakers earlier this week.
MinnPost photo by Terry Gydesen
Jeb Bush discussing Florida education reforms with Minnesota lawmakers earlier this week.

When he called on the state Legislature earlier this week, former Florida Gov. Jeb Bush credited the “threat of vouchers” with spurring progress in his state’s struggling schools. Given that we all know vouchers repeatedly have been ruled unconstitutional, rank and file Minnesotans might be wondering why Bush urged lawmakers to consider them.

It seems a fissure has appeared in the case against vouchers. In a little-noted decision released earlier this month, the U.S. Supreme Court let stand an Arizona law that gives taxpayers a dollar-for-dollar tax credit for donations made to groups known as school tuition organizations, or STOs, that provide religious-school scholarships. The 5-4 decision did not declare vouchers constitutional; it held that taxpayers were not entitled to challenge them. 

Et voila: An explanation for the flurry of mid-session voucher bills popping up in statehouses throughout the country?

In 1999, two years after Arizona began its $500-per-person tax credit program, Florida began offering vouchers of up to $4,000 each to kids attending failing schools. In 2006, the Florida Supreme Court overturned Bush’s program, but let stand two categories of public aid for private schools.

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Disabled Florida kids are still entitled to vouchers, and businesses can claim tax credits for donations made to scholarship funds, whether the money is ultimately paid to a secular school or a religious one.

In Arizona several taxpayers sued the Department of Revenue, claiming, essentially, that the state had injured them by handing their money to religious causes. A number of appeals later and SCOTUS, lining up along expected ideological lines, concluded that taxpayers have no standing to “challenge a tax credit as opposed to a governmental expenditure.”

Justice Anthony Kennedy authored the majority opinion, and was joined by Chief Justice John Roberts Jr. and Justices Antonin Scalia, Clarence Thomas and Samuel A. Alito Jr.:

“Here, the STO tax credit does not ‘extrac[t] and spen[d]’ a conscientious dissenter’s funds in service of an establishment or ‘force a citizen to contribute’ to a sectarian organization. Rather, taxpayers are free to pay their own tax bills without contributing to an STO, to contribute to a religious or secular STO of their choice, or to contribute to other charitable organizations. Because the STO tax credit is not tantamount to a religious tax, respondents have not alleged an injury for standing purposes.”

Doublespeak, you say? Well, so did Elena Kagan, in her first dissenting opinion, which Ruth Bader Ginsburg, Stephen Breyer and Sonia Sotomayor joined:

“Since its inception, the Arizona private-school-tuition tax credit has cost the State, by its own estimate, nearly $350 million in diverted tax revenue,” Kagan wrote, noting that the “novel distinction” between a tax break and a tax expenditure “has as little basis in principle as it has in our precedent. Cash grants and targeted tax breaks are means of accomplishing the same government objective — to provide financial support to select individuals or organizations…. Either way, the government has financed the religious activity.

“Still worse,” she continued, “the Court’s arbitrary distinction threatens to eliminate all occasions for a taxpayer to contest the government’s monetary support of religion.”

The opinion does an “end-run around a longstanding decision,” according to Raleigh Hannah Levine, a professor at William Mitchell College of Law in St. Paul and an expert in constitutional law.

“It’s really troubling not just from an education standpoint, but from a First Amendment perspective,” she said. “It creates such a large exception to the rule it essentially swallows the rule.

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“The implications are that states that want to avoid a constitutional challenge to voucher program are going to understand that if they copy Arizona’s program and give taxpayers dollar-for-dollar credits, no one is going to be able to come challenge it,” Levine added.