The Catholic University of America

 

 

 L-R: CUA Law Professor Robert Destro, Ilya Shapiro, senior fellow, Cato Institute; Bob Ritter, legal coordinator, Appignani Humanist Legal Center; and Gregory Lipper, associate, Covington & Burling LLP.

 

The Battle Over School Choice and the Meaning of the Establishment Clause

 

Some legal cases are like the famous Rorschach inkblot test: what is “seen” by the viewer may say as much about his personal outlook and psychology as it does about the image—or lawsuit—itself.
 
That would seem to be the case with Arizona Christian School Tuition Organization v. Winn, a controversial case heard by the United States Supreme Court on Nov. 3 that offers a new twist on a familiar legal battle: whether taxpayer monies can ever be used to fund religious schools.
 
Some of the interested parties that filed amicus briefs in the case and attended the oral arguments in person convened two weeks later at the Columbus School of Law to revisit the main issues and areas of disagreement.
 
Sponsored by the CUA Law chapter of the Republican National Lawyers Association, the Nov. 17 discussion brought together Ilya Shapiro, senior fellow, Cato Institute and author of Cato Institute’s amicus brief; Gregory Lipper, associate, Covington & Burling LLP, co-author ofAmericans United for Separation of Church and State’s amicus brief; Bob Ritter, legal coordinator, Appignani Humanist Legal Center, author of American Humanist Association’s amicus brief; and Catholic University Law School Professor Robert Destro, author of the Jewish Tuition Organization and Catholic Tuition Organization’s amicus brief.
 
Their spirited discussion was moderated by Professor Sarah Duggin, director of Catholic University’s Law and Public Policy Program, which co-sponsored the event.
 
For more than a decade, Arizona has operated a program that gives parents tax credits for tuition at private schools by permitting them to donate directly to entities known as “school tuition organizations.” Most parents use the credits to help pay for private schools that are religiously-affiliated. The United States Ninth Circuit Court of Appeals has ruled that the program is a clear violation of the Establishment Clause, a question that the Supreme Court must now settle.
 
        
 
The discussants quickly diverged into two camps: Destro and Shapiro supporting the legality of Arizona’s approach, and Ritter and Lipper opposing it.
 
Shapiro said the CATO Institute supports general school choice, not a specific religion. He maintained that allegations of pressure to enroll children in religious schools in Arizona “are not supported by evidence.” For his part, Destro argued the case is really about free speech, and wondered why any state should have a monopoly on the education content in classrooms.
 
“Arizona has opened up the educational marketplace of ideas to competition,” he said. 
 
Not surprisingly, others had a very different view. “I see this as a case of money-laundering,” said Ritter, referring the state’s use of a tax credit to support private school tuition. “What Arizona can’t do directly, it is attempting to do indirectly.”
 
Lipper agreed. “The program would be clearly unconstitutional if it were operated directly by the state government,” he said.
 
Divining the intentions of the Supreme Court is never an exact science, but when asked to predict its eventual ruling, three of the four panelists thought that the Arizona program would survive its constitutional challenge by a 5-4 vote.