Obama Administration Backs Religious School Aid, Opposes Right To Sue

In a move that stunned advocates of church-state separation and public education, the Obama administration last month filed a brief with the U.S. Supreme Court arguing in favor of a controversial Arizona program that diverts tax dollars to religious and other private schools.

The Arizona scheme allows taxpayers to make contributions to private voucher organizations that in turn pay for tuition at private schools. The donors then take a 100 percent tax credit for the donation. Critics call the set-up a backdoor voucher plan.

In a legal brief filed with the high court, the U.S. Justice Department not only asserts that the plan is constitutional, but also argues that taxpayers should not have “standing” – the legal right to sue – to challenge it in court.

Furthermore, the Solicitor General’s Office requested and was granted the right to argue in favor of the program during Nov. 3 oral arguments.

The case, Arizona Christian School Organization v. Winn, was brought by taxpayers who argue that the bulk of the money under the program flows to religious schools, thus violating church-state separation.

The 9th U.S. Circuit Court of Appeals agreed, but the Supreme Court has decided to take another look. A decision is expected by July. (See “Backdoor Vouchers Slip Into Supreme Court,” September 2010 Church & State.)

The Obama administration’s stance puts it on the same side with Pat Robertson’s American Center for Law and Justice, Jerry Falwell Jr.’s Liberty Counsel, the U.S. Conference of Catholic Bishops, the Christian Legal Society and an array of other pro-voucher organizations.

Americans United Executive Director Barry W. Lynn said he was shocked and disappointed by the Obama administration’s intervention in the case. As a candidate, Obama opposed voucher aid to private schools and said he would focus on reforming public education.

“The Arizona scheme undermines both public education and church-state separation,” Lynn said. “The Obama administration has inexplicably come down on the wrong side of this. Worse yet, the administration is actually asking the court to deny Americans’ right to sue over this matter. It’s simply unacceptable.”

Americans United weighed in on the matter Sept. 22 with a friend-of-the-court brief filed at the Supreme Court.

The AU brief, joined by the American Jewish Committee, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and The Interfaith Alliance Foundation, focuses primarily on the standing question. (The American Civil Liberties Union, which is representing the plaintiffs, addressed the church-state issues in its brief.)

Observes the AU brief, “If anything, contemporary fiscal politics suggest that the support of religion through tax credits is even more prone to abuse than is religious support through cash grants. Like most tax cuts, tax expenditures ‘are subjected to considerably less congressional and popular scrutiny than are direct appropriations.’”