Wednesday, December 2, 2009

First Amendment Establishment Clause: Ninth Circuit Eliminates State Voluntary School Program; Winn v. Arizona Christian School Tuition Organization, 562 F.3d 1002 (9th Cir. 2009)

When drafting the First Amendment prohibiting the establishment of a national state church, the authors of the Constitution would never have anticipated the inordinate amount of litigation over judicial interpretation of the text. Because all schools in 1787 were private, no one worried about public assistance to private schools. And the first ten amendments to the Constitution applied only to the national government, not the states. All that has changed since the Supreme Court "incorporated" the First Amendment into state law. Few would quarrel with an Establishmentment Clause violation if a State program provided outright gifts of public funds to private schools. But several states have attempted to offer an option to parents of children who elect to attend private schools, in most cases religious ones. Tax credits, vouchers and other alternatives survived the Establishment Clause in the decision of the Supreme Court in Zelman v. Simmons-Harris, 536 U.S. 639 (2002). The Court held that if the State offers vouchers to all school children who have an opportunity to participate, the program does not "establish" religion. The Arizona Legislature enacted legislation allowing parents to set up a program, admittedly detailed, but essentially allowing school children to participate in alternatives to public schools and receive a tax credit. All children could participate in any school of their choice. The State did nothing more than offer parents an option they could elect for their children. . The Arizona Supreme Court upheld the program, (Kotterman v. Killian, 972 P.2d 606 (1999) yet dissatisfied taxpayers filed a claim in U.S. District Court alleging the Arizona program violated the Establishment Clause. The district court dismissed the case (Winn v. Hibbs, 361 F.Supp. 2d 1117 (2005) and the plaintiffs appealed to the Ninth Circuit. Despite similarity of the Arizona program with the voucher system approved by the Supreme Court in its Zelman decision, a three judge panel of the Ninth Circuit held the statute violated the Establishment Clause. The Ninth Circuit refused to hear this case en banc, confirming again the animus toward religion that exists in that circuit. The dissenting judge dissected the reasoning of the three judge panel in an opening paragraph: "I dissent not only because Winn cannot be squared with the Supreme Court's mandate in Zelman, but also because the panel's holding casts a pall over comparable educational tax-credit schemes in states across the nation and could derail legislative efforts in four states within our circuit to create similar programs. In short, the panel's conclusion invalidates an increasingly popular method for providing school choice, jeopardizing the educational opportunities of hundreds of thousands of children nationwide." Not only is the Winn decision biased against religion as one judge noted in an unrelated case- the American people are not in danger of a theological jihad- by allowing a tax deduction but its decision overrules the Arizona Supreme Court in yet another example of disrespect to the shield of state sovereignty. Ten years after the Arizona Supreme Court upheld the legislation, a federal court of three unelected tenured federal judges dismantles the program.

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