Scholarship tax credit programs have the potential to make an even greater impact on the educational landscape. In many states, the scholarship organizations participating in the existing programs could, by law, raise more money than they currently do. For example, in 2009, Arizona’s Corporate School Tuition Organization Tax Credit raised $7 million less than the $14.4 million maximum allowed for the program; in 2010, Georgia’s scholarship tax credit program attracted $25 million less in donations than the $50 million allowed by state law; and Indiana’s program garnered only $435,050 in donations in the first year of its operation, despite state law allowing $5 million. And the Arizona program at issue in Winn—which provides a credit against individual state income tax burdens—is not capped at all. Last year, the program attracted $52 million in donations to scholarship organizations, an amount that is clearly only a fraction of the total tax dollars that might be allocated to scholarships by taxpayers. Moreover, not only do the fiscal caps on the existing programs tend to increase each year, but a number of other states are poised to adopt new programs, including New Jersey, Oklahoma, and Ohio.

The Supreme Court’s 2002 decision in Zelman v. Simmons-Harris should have eliminated all doubts about the constitutionality of scholarship tax credits. Indeed, the underlying claim in Winn—that Arizona’s scholarship tax credit program violated the Establishment Clause because the scholarship-distribution policies of private recipients of charitable contributions were not religion-neutral—bordered on frivolous. The claim, if taken seriously, would call into question the constitutionality of large portions of the Internal Revenue Code (as well as numerous state income tax codes) since undoubtedly the activities of many recipients of tax-free charitable donations are not religion-neutral. (Consider, for example, whether the Hillel Foundation violates the Establishment Clause by focusing its efforts on Jewish students.) The Ninth Circuit’s opinion taking the claim seriously was therefore both lawless and utterly befuddling.

Opponents of school choice undoubtedly relished the Ninth Circuit’s adventure, but their victory proved a pyrrhic one. In fact, the Winn plaintiffs’ decision to challenge Arizona’s scholarship tax credit program may well be one of the great tactical blunders in constitutional litigation history. While the defendants surely would have welcomed a clear statement rejecting the underlying Establishment Clause argument in Winn, the decision rejecting the claim on standing grounds represents a far more sweeping victory for educational choice. The Supreme Court’s holding—that Flast v. Cohen’s exception to the no-taxpayer-standing rule is inapplicable in the tax-credit context—forecloses many of the Establishment Clause nuisance suits that inevitably follow the enactment of a new school choice program. Winn also may embolden litigation-phobic state legislators to embrace scholarship tax credits. And it most certainly provides ammunition for school choice proponents who constantly face political opponents insistent on convincing policy makers and courts that school choice is unconstitutional. In other words, Winn clears a constitutional path for a dramatic expansion in school choice in the United States, a path likely to be paved in many states by scholarship tax credits.

Scholarship tax credits have injected new life into the school choice movement (and new resources into the private education sector) at an opportune time—that is, at a time when educational opportunities are desperately needed and educational pluralism is seriously threatened. Today, while the diversity of the secular school sector is blossoming thanks to an explosion in charter schools over the past two decades, the religious sector is diminishing. The primary, but not exclusive, driver of this trend is the rapid disappearance of Catholic schools from the educational landscape. More than 1600 Catholic schools, most of them located in urban neighborhoods, have closed during the last two decades. Dozens more close each year, and many hundreds more labor under the strains of mounting costs, declining enrollments, and competition from charter schools. Thus, one way that scholarship tax credits may accomplish their goal of expanding educational opportunities for the poor is simply by helping to sustain the very schools that have long provided a high-quality education, especially in America’s inner cities—that is, urban Catholic schools. Beginning with James Coleman’s seminal work, decades of research has demonstrated Catholic schools’ immense contributions to the common good. Inner-city Catholic schools in particular have long outperformed public schools at the difficult task of educating poor minority students. Furthermore, my own research with Margaret Brinig links Catholic school closures in Chicago both to increased disorder and crime and to reduced levels of neighborhood social cohesion, findings that we believe strongly support the conclusion that Catholic schools’ benefits extend beyond the students that they serve. These schools are important generators of social capital in urban neighborhoods—social capital that is being eroded as they gradually disappear from the urban landscape. There is evidence that scholarship tax credit programs have helped stem the tide of Catholic school closures and enabled Catholic schools to compete with tuition-free charter schools, thereby preserving all of these important benefits.

But the benefits of scholarship tax credits extend far beyond Catholic schools. Funds generated by scholarship tax credits support students at a wide variety of secular and religious schools. This year in Florida, scholarship tax credits assisted students at nearly 1100 secular and religious schools; in Arizona at 370; and in Pennsylvania at 275. While it is difficult to demonstrate causation, the trends (and anecdotal evidence) strongly suggest that scholarship tax credits also have enabled new schools, both religious and secular, to open in a number of states, thereby enhancing the diversity of educational options available to students who desperately need them. And, as I have previously argued, by increasing the affordability and diversity of educational options available in cities, scholarship tax credits may also enable cities to retain the young parents who all too frequently flee to suburbs and their high-performing public schools.

Much of the Supreme Court’s Establishment Clause canon was developed in the context of—and was animated by anxiety about—programs extending public resources to religious schools, especially Catholic schools. At least since the American bishops began to demand a fair share of public education funds in the mid-nineteenth century, opponents have believed that Catholic schools posed a threat to American democracy. In 1875, for example, Speaker of the House James G. Blaine proposed an amendment to the U.S. Constitution prohibiting the public funding of “sectarian schools.” While Blaine’s amendment failed by four votes in the Senate, thirty-three states subsequently incorporated similar prohibitions into their constitutions, either voluntarily or as a condition of entering the union. More than a century later, Flast ensured that the federal courts would review virtually every governmental effort to assist students in religious schools according to rules that shared an intellectual and political pedigree with James Blaine. The plaintiffs in Flast challenged, on Establishment Clause grounds, certain applications of Title I and Title II of the Elementary and Secondary Education Act of 1965—a federal statute that funds (and continues to fund) educational services and materials for low-income children, including those enrolled in religious schools. That anti-Catholic sentiment persisted in the minds of some Justices deciding Flast is made clear in Justice Douglas’s concurring opinion. After analogizing the Title I and Title II programs to state efforts to avoid desegregation decrees, Douglas warned that “[t]he mounting federal aid to sectarian schools is notorious, and the subterfuges numerous,” and cited as support an explicitly anti-Catholic editorial describing how “clerics” and “priests” hoped to divert funds from facially neutral student aid programs for “sectarian” purposes.

These scare tactics left deep marks in American law and on the American psyche. Indeed, a case can be made that scholarship tax credits themselves are a product of the success of those scare tactics. Scholarship tax credits emerged in the late 1990s as an alternative to controversial school voucher programs. Proponents believed that tax credits would be both more politically palatable than vouchers and more likely to clear state constitutional hurdles, especially the “Little Blaine” Amendments described above, which today represent the most substantial legal hurdle to school choice.

Over the past three decades, as state legislatures have gradually extended public assistance to students attending private schools on a religion-neutral basis—and courts have come to reject legal challenges to these efforts with some consistency—American education policy finally has begun to embrace authentic educational pluralism. Winn allows policymakers the constitutional space to promote further this pluralism through scholarship tax credits. This is, despite the handwringing of the dissenting Justices, a victory for civil society.

Nicole Stelle Garnett is a Professor of Law at Notre Dame Law School and a Fellow at the Notre Dame Institute for Educational Initiatives.

Preferred citation: Nicole Stelle Garnett, A Winn for Educational Pluralism, 121 Yale L.J. Online 31 (2011), http://yalelawjournal.org/forum/a-winn-for-educational-pluralism.