Court's Door Open for More Voucher Cases ; the Supreme Court Says Federal Courts Can Review a State Tax Plan Benefiting Parochial Schools

By Warren Richey writer of The Christian Science Monitor | The Christian Science Monitor, June 18, 2004 | Go to article overview

Court's Door Open for More Voucher Cases ; the Supreme Court Says Federal Courts Can Review a State Tax Plan Benefiting Parochial Schools


Warren Richey writer of The Christian Science Monitor, The Christian Science Monitor


The US Supreme Court has set the stage for a new round of contentious litigation over the constitutionality of providing public tax revenue to parochial schools.

Two years ago in a landmark decision, the high court upheld a school voucher program in Cleveland against allegations that it violated the separation of church and state. This week, the justices opened the door for what may become the next major test of the high court's emerging jurisprudence dealing with government aid to religious schools.

The case involves a federal court challenge to a tax-credit program that primarily benefits parochial schools in Arizona. At issue in Hibbs v. Winn was whether federal courts have jurisdiction to hear cases challenging the state tax-credit program.

In the 5-to-4 decision Monday that surprised many legal analysts, Justice Sandra Day O'Connor, joined the court's liberal wing to provide the decisive fifth vote necessary to uphold a federal appeals court ruling that Arizona's tax-credit setup can be challenged in federal court.

The decision is an important victory for those seeking to outlaw tax-credit and school-voucher plans as impermissible government entanglement with religion. At the same time it is a major setback to supporters of public aid to parochial schools.

"How many times do we have to win this before it is over?" asks Benjamin Bull of the Alliance Defense Fund, a Scottsdale, Ariz., conservative advocacy group supporting the tax-credit program.

Had Arizona officials prevailed, the case might have effectively insulated from federal court scrutiny any future state tax-credit programs favoring religious schools - not just in Arizona but nationwide.

By making clear that there is federal court jurisdiction over state tax-credit programs, the high court has prepared the way for a full array of legal challenges in federal district and appeals courts.

"The court is upholding the principle that federal rights can be vindicated in federal courts. That is the bottom line in this case," says Judith Schaeffer of People for the American Way, a liberal advocacy group in Washington, D. …

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