“Empowerment scholarship accounts” allow state funds to be used for parochial and private education

PHOENIX — A new U.S. Supreme Court ruling allowing state funds to be used for parochial school scholarships in Montana cements in place a system that has existed here for years, all with the blessing of courts.

The nation’s high court in 2011 upheld a virtually identical program in Arizona. And while the reasoning of the justices in that case was different, the result is the same.

In fact, Arizona has a much more direct form of aid to religious schools than the one at issue in the Montana case decided Tuesday. But even that has been found to be legal by state courts here.

At issue in both Arizona and Montana is a system that gives people a dollarfor-dollar credit against their income taxes for money donated to organizations that provide scholarships for students to attend private and parochial schools.

In the Arizona program, individuals can divert up to $593 a year — double that for couples — to the scholarship organizations. There are similar programs for corporations and insurance companies.

All totaled, the state Department of Revenue figures there was about $192 million taken in these credits in the 2018 fiscal year, the most recent figures available.

Challengers to the Arizona law charged that the system is an illegal subsidy of religious schools, pointing out that the organizations that accept the donations and give out the aid can decide where those scholarships can be used. And the largest organizations give scholarships to parents only if they agree to send a child to a religious school.

What makes all this relevant is there is a provision in the Arizona Constitution that bars state aid to religious schools — exactly the same provision that exists in the Montana Constitution

and in 36 other states.

It was on the basis of that amendment that the Montana Supreme Court ruled the tax credit unconstitutional. But the U.S. Supreme Court, in Tuesday’s ruling, said applying the amendment that way discriminated against religious schools and the families whose children attend or hope to attend them.

The 2011 Supreme Court ruling upholding Arizona’s tax credits didn’t get into that level of detail.

Instead, Justice Anthony Kennedy, said the people who filed the lawsuit — Arizona taxpayers represented by the American Civil Liberties Union — had no legal right to challenge the law. He said the diversion of tax receipts does not necessarily undermine the goal of providing state funds for public education.

Since that ruling, Arizona has enacted an even more far-reaching program, this one giving actual vouchers of state dollars to parents to send their children to private and parochial schools.

In a challenge to that system, the state Court of Appeals concluded that the program, officially dubbed “empowerment scholarship accounts,’’ does not run afoul of that constitutional amendment making it illegal to use tax dollars for religious worship or instruction.

The judges also found no violation of a separate constitutional provision that bars public funds from being used to subsidize private and parochial schools. The court said the fact the parents control where the money is spent was sufficient to make the program legal.

A pending initiative drive seeks to limit the number of vouchers the state can issue to no more than 1 percent of the total number of children enrolled in public schools. With about 1.1 million in traditional district and charter schools, that would set the cap at about 11,000.