Case Could Boost Funding for Private Schools ; the US Supreme Court Considers Whether Federal Judges Can Rule on a Parochial-School Tax Credit

Article excerpt

Tuesday the US Supreme Court takes up a case that could provide the most significant boost to those supporting public funding for parochial schools since the high court's school-voucher decision two years ago.

The central issue in Hibbs v. Winn isn't the constitutionality of a tax-credit system in Arizona that helps fund parochial school tuition.

Rather, the issue is more technical: whether the federal courts can review determinations already made by state judges about whether such tax-credit systems violate the separation of church and state.

Still, the case is important because if the nation's highest court rules in Arizona's favor, it will eliminate an entire level of judicial review once available to those who oppose parochial-school tax-credit plans. Such a ruling would also provide a green light to those seeking increased government funding of religious schools, provided they have the state legislature's support and the state judiciary's approval.

The case is also significant because it touches on a much broader ideological struggle under way within the judiciary itself over the proper role of federal judges. At issue is just how aggressive a stance federal judges should take in cases involving state regulations that impact fundamental rights guaranteed by the US Constitution.

Case history

In the Arizona case, the Supreme Court of Arizona upheld the tax- credit program as constitutional in a 3-to-2 decision issued in 1999. Nonetheless, a group of taxpayers filed a new lawsuit challenging the program. Rather than filing in state court, the plaintiffs took their case to the federal level. Arizona objected, arguing that a 1937 law - the federal Tax Injunction Act - bars federal courts from asserting jurisdiction over matters involving a state's tax system. Lawyers for Arizona said that as long as the state provides an opportunity to challenge the tax system within its own courts (with appeal to the US Supreme Court), federal judges have no jurisdiction over such cases.

A three-judge panel of the Ninth US Circuit Court of Appeals disagreed. The tax-credit program is allegedly an impermissible government subsidy of religious schools in violation of the First Amendment's separation of church and state, the court noted.

The Tax Injunction Act was not intended to prevent federal judges from acting in cases where federal constitutional rights were being violated by state policies, the court said in a 3-to-0 decision. The panel opinion was written by Judge Stephen Reinhardt, who wrote that federal judges must be free to operate as "guardians of the people's federal rights. …


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