Winn v. Arizona Christian School Tuition Org.
| Decision Date | 21 October 2009 |
| Docket Number | No. 05-15754.,05-15754. |
| Parties | Kathleen M. WINN, an Arizona taxpayer; Diane Wolfthal, an Arizona taxpayer; Maurice Wolfthal, an Arizona taxpayer Lynn Hoffman, an Arizona taxpayer, Plaintiffs-Appellants, v. ARIZONA CHRISTIAN SCHOOL TUITION ORGANIZATION; Arizona School Choice Trust; Luis Moscoso; Gale Garriott, in his official capacity as Director of the Arizona Department of Revenue; Glenn Dennard, Defendants-Appellees. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Isabel M. Humphrey, Esquire, Hunter, Humphrey & Yavitz, PLC, Paul Bender, Phoenix, AZ, Marvin S. Cohen, Esquire, Sacks Tierney PA, Scottsdale, AZ, for Plaintiffs-Appellants.
Benjamin Wyman Bull, Esquire, Jeremy D. Tedesco, Alliance Defense Fund, Scottsdale, AZ, David Andrew Cortman, Esquire, Alliance Defense Fund, Lawrenceville, GA, Paula S. Bickett, Esquire, Terry Goddard, Esquire, Arizona Attorney General's Office Frank J. Conti, Jr., Esquire, Pheonix, AZ, Timothy D. Keller, Tempe, AZ, for Defendants-Appellees.
D.C. No. CV-00-00287-EHC, District of Arizona, Phoenix.
Before: D.W. NELSON, STEPHEN REINHARDT and RAYMOND C. FISHER, Circuit Judges.
ORDER
Judges Reinhardt and Fisher voted to reject the petitions for rehearing en banc and Judge Nelson so recommended.
The full court was advised of the petitions for rehearing en banc. A judge requested a vote on whether to rehear the matter en banc, and the matter failed to receive a majority of the votes of the nonrecused active judges in favor of en banc consideration. Fed. R.App. P. 35.
The three petitions for rehearing en banc, filed May 14, 2009, are denied.
For the reasons stated by the panel in its concurrence, I also concur in the denial of rehearing en banc.
A majority of the active judges of our court declined to vote for rehearing of this case en banc. We concur in the court's decision not to go en banc.
The State of Arizona finances private "school tuition organizations" (STOs) by giving dollar-for-dollar tax credits to individuals who contribute to them. On its face, the statute creating this subsidy requires STOs to provide scholarships for students "to attend any qualified school of their parents' choice." Ariz.Rev.Stat. Ann. § 43-1089(G)(3) (2005) (emphasis added).1 As the Arizona Department of Revenue applies the statute, however, the state reimburses contributions to STOs that restrict their scholarships to use at religious schools. Consequently, 85 percent or more of the state-financed scholarship money is available only to students whose parents are willing to send them to sectarian institutions.2
If these facts are proved true, the Arizona Department of Revenue's execution of the scholarship program (Section 1089) violates the Establishment Clause. In Zelman v. Simmons-Harris, 536 U.S. 639, 122 S.Ct. 2460, 153 L.Ed.2d 604 (2002), the Court upheld a school voucher program that "provide[d] assistance directly" to parents without regard for religion, and public funds reached religious institutions only as the result of parents' choices about their children's education. Id. at 652, 122 S.Ct. 2460. Parents received aid whether or not they were willing to enroll their children in sectarian schools, so the program did not exert pressure on parents to choose religious schools. Under the Arizona program, by contrast, taxpayers, rather than parents, direct funds to religious organizations. Access to assistance is restricted on the basis of religion, creating financial incentives that may skew parents' choices toward religious schools. See id. at 650, 122 S.Ct. 2460. The differences between the Ohio and Arizona programs are constitutionally meaningful.
The dissent from rehearing en banc demonstrates that others may prefer a more expansive reading of Zelman. Careful review of the two cases, however, shows why the dissent's argument that "Winn cannot be squared with the Supreme Court's mandate in Zelman" is not persuasive. Dissent 14719-20.
On its face, Section 1089 appears to provide for parental choice. The statute says that for an organization to qualify as an STO eligible to receive state-reimbursed contributions the organization must provide scholarships "to children to allow them to attend any qualified school of their parents' choice." Ariz.Rev.Stat. Ann § 43-1089(G)(3) (emphasis added).3 If this were how Arizona applied the statute, the Arizona program would be similar to the majority of the tax credit programs currently in operation. Like Section 1089, four of these programs contain provisions directing scholarship organizations to provide scholarships for students to attend any qualified school of their parents' choice.4 These "parental choice" clauses may explain the apparent absence of any Establishment Clause challenges to those programs.
This is not, however, how the Arizona Department of Revenue applies the statute. According to plaintiffs' complaint, Arizona gives tax credits reimbursing individuals who contribute to STOs that expressly restrict their scholarships to use at religious schools. The largest STO, the Catholic Tuition Organization of the Diocese of Phoenix, restricts its scholarships to use at Catholic schools in the Phoenix Diocese; the second largest, the Arizona Christian School Tuition Organization provides scholarships only to students attending evangelical Christian schools; and the third largest, Brophy Community Foundation, restricts its scholarships to use at two specific Catholic schools. See Winn, 562 F.3d at 1006. As a result of how the Arizona Department of Revenue applies Section 1089, plaintiffs allege, these three religious STOs controlled 85 percent of the total STO donations in 1998, the year before the complaint was filed. See id. at 1006. Plaintiffs argue that it is this application of Section 1089 that violates the Establishment Clause.
We turn first to the issue of "whether Section 1089 `has the forbidden "effect" of advancing or inhibiting religion.'" Winn, 562 F.3d at 1012 (quoting Zelman, 536 U.S. at 649, 122 S.Ct. 2460).
The Winn panel held that the Arizona Department of Revenue's application of Section 1089 may not provide parents with "true private choice" within the meaning of Zelman. See id. at 1015-18. With respect to this conclusion, the dissent accuses the panel of rejecting the majority's holding in Zelman in favor of Judge Souter's dissent. Not so.
The dissent fails to address the crucial difference between the Ohio voucher program upheld in Zelman and the Arizona Department of Revenue's application of Section 1089: with respect to religion, the Ohio program gave parents equal access to tuition benefits. See Zelman, 536 U.S. at 645, 122 S.Ct. 2460. Under the Ohio program, the state provided tuition aid on the basis of financial need, without regard to religion, and eligible parents were free to apply the aid toward any private school religious or secular, or toward a public school outside the district willing to participate in the program (though none was). If a parent decided to send her child to a private school, the state wrote a check made payable to the parent, which the parent could then endorse over to her chosen school. See id. at 646, 122 S.Ct. 2460 Crucially, a parent's choice to send her child to a religious school would neither help nor harm her chance of receiving tuition aid.
Whether such a program violates the Establishment Clause, the Court held, does not depend on whether the parent receiving tuition aid has a broader array of religious than secular schools to choose from. This is because "[t]he constitutionality of a neutral educational aid program simply does not turn on whether and why, in a particular area, at a particular time, most private schools are run by religious organizations, or most recipients choose to use the aid at a religious school." Id. at 658, 122 S.Ct. 2460 (emphasis added). The majority in Zelman made clear, however, that a "neutral educational aid program"— or, as the Court also put it, a "program of true private choice"—is one that grants access to benefits without regard to religion. Id. at 658, 662, 122 S.Ct. 2460.
The importance of providing equal access to benefits is emphasized throughout Zelman. A common thread running through indirect aid programs the Supreme Court has upheld against Establishment Clause challenges, the Zelman Court observed, is that they have been "neutral with respect to religion[ ] and provide[d] assistance directly to a broad class of citizens." Id. at 652, 122 S.Ct. 2460 (emphases added); see also Mueller, 463 U.S. at 397, 103 S.Ct. 3062; Witters v. Wash. Dep't of Servs. for the Blind, 474 U.S. 481, 487, 106 S.Ct. 748, 88 L.Ed.2d 846 (1986); Zobrest v. Catalina Foothills Sch. Dist., 509 U.S. 1, 113 S.Ct. 2462, 125 L.Ed.2d 1 (1993).5 Likewise, under the Ohio voucher program, the Court stressed, "[p]rogram benefits are available to participating families on neutral terms, with no reference to religion." Zelman, 536 U.S. at 653, 122 S.Ct. 2460 (emphases added).
By contrast, as plaintiffs allege the Arizona Department of Revenue applies the statute, access to Section 1089-funded scholarships is not "available ... on neutral terms, with no reference to religion." Parents who are unwilling to send their child to a religious school may be denied access to program benefits because, as plaintiffs allege, there are not a sufficient number of scholarships available for use at secular schools. Accordingly, these parents are shut out of the program altogether, and at the very least their chances of receiving benefits are harmed by their choice to send their child to a secular school.
This lack of access on a religiously neutral basis explains why Section...
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