Supreme Court Preserves Education Tax Credit Law
 In a landmark ruling, the U.S. Supreme Court has effectively upheld the constitutionality of an Arizona education tax credit law by determining that taxpayers lack legal standing to object. The High Court's decision in Arizona Christian School Tuition Organization v. Winn et al, opens the door to other states wishing to enact similar legislation.
The syllabus of the case, which was narrowly decided by a 5-4 majority, can be found, here. It contains the majority opinion, authored by Justice Anthony Kennedy, a concurring opinion written by Justice Antonin Scalia, and a dissenting opinion offered by the newest of the Court's members, Justice Elena Kagan. Justice Kennedy's majority opinion was joined by Chief Justice John Roberts, and Justices Samuel Alito, Antonin Scalia, and Clarence Thomas. Justice Scalia's opinion was joined by Justice Thomas. Justice Kagan's dissenting opinion was joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Sonia Sotomayor.
The Arizona law in question provides a dollar for dollar tax credit (to a maximum of $500 for individual taxpayers and $1,000 for taxpayers filing jointly) for contributions to school tuition organizations (STOs). The STOs award at least 90 percent of the funds they collect as scholarships designed to help students wishing to enroll in private schools. The arrangement, which has been in effect since the 1998-99 school year, currently provides more than 27,000 students with scholarships whose average value is approximately $1,896. Additional information on this, and other school choice programs can be found in the Alliance for School Choice's 2010-11 School Choice Yearbook.
The November, 2010 edition of CAPE Outlook provides commentary on the case's oral arguments, which were heard last October 3. The article identified what proved to be the pivotal issue in the Court's decision, to wit: " whether money that the state does not collect in taxes is actually the government's money." It notes an analogy offered by Justice Kennedy in which a restaurant gives a senior citizen a 10 percent discount. Justice Kennedy then remarked, "I think it would be rather offensive for the cashier to say, 'and be careful how you spend my money.'"
Such reasoning proved central to the Court's majority opinion, in which Justice Kennedy wrote: In [respondents] view the tax credit is...best understood as a governmental expenditure. That is incorrect." And later: "When the government collects and spends taxpayer money, governmental choices are responsible for the transfer of wealth. Here, by contrast, contributions result from the decisions of private taxpayers regarding their own funds."
This line of thought points to an important distinction to be drawn between school voucher programs and education tax credit arrangements. Even though the Supreme Court has upheld the constitutionality of school vouchers in Zelman v. Simmons-Harris, the Court's current ruling implies that taxpayers possess standing to object: "A dissenter whose tax dollars are 'extracted and spent' knows that he has in some small measure been made to contribute to an establishment in violation of conscience." In other words, in a voucher arrangement, a taxpayer can rightfully object that his tax dollars are supporting the propagation of beliefs to which he takes exception. It should, however, be reiterated that the mere fact that such a person has legal standing to object doesn't make the practice in question unconstitutional on the merits, as Zelman v. Simmons-Harris has already determined. With the Court's current ruling, a tax credit arrangement such as that enacted in Arizona defeats such objections.
The simple fact that someone is a taxpayer is generally regarded as insufficient grounds for bringing suit against the government. The Supreme Court's 1968 ruling in Flast v. Cohen, however, provided a narrow exception that granted standing, under certain circumstances, to taxpayers claiming an unconstitutional use of government funds. Much of the argumentation in the current case revolves around the applicability of the Court's decision in Flast. Justice Scalia's short concurring opinion indicated that his preference would have been to repudiate Flast, which he described as "an anomaly in our jurisprudence," and a "misguided decision."
Justice Kagan's dissent rejects the notion of a distinction between tax credits and governmental expenditures. "Cash grants and targeted tax breaks," she argues, "are means of accomplishing the same government objective - to provide financial support to select individuals or organizations. Either way, the government has financed the religious activity. And so either way, taxpayers should be able to challenge the subsidy."
Ironically, the Obama Administration directed Justice Kagan's former deputy, Acting Solicitor General Neal Katyal, to express the view that taxpayers do not possess standing to challenge a tax credit for violating the Establishment Clause, at the case's oral argument.
The New York Times reports the decision, here. The Wall Street Journal covers it, here. Lyle Denniston reviews the decision on the SCOTUSblog, here.
A New York Times editorial that is highly critical of the Court's ruling begins as follows: "In the Supreme Court's 5-to-4 ruling about a school-choice program in Arizona, Justice Anthony Kennedy's opinion leaves intact a program that has disbursed almost $350 million of state funds, most of it to schools choosing students on the basis of religion." The piece concludes by declaring the ruling "another cynical sleight of hand, which will reduce access to federal courts while advancing endorsement of religion." The editorial's premise - that the Arizona tax credit program entails an expenditure of state funds -appears to stand in direct contradiction to the finding of the Court. |
You're Kidding Me, Right?
"Two school custodians in the Bronx cheated the city out of more than $500,000 by creating no-show jobs and using school money to pay no-show workers to maintain private properties one of them owned in Queens..."
The primary beneficiary of the scheme appears to be Tridon Radef, a full-time custodian at the Theodore Roosevelt Educational Campus, which has quite a history of its own. The South Bronx high school first opened its doors in 1918, and was renamed Theodore Roosevelt High School shortly after its namesake's death in January of the following year. Over the decades, the school experienced a series of ups and (mostly) downs that culminated in its closure at the conclusion of the 2006 school year, when Roosevelt's graduation rate stood at a mind numbing 3 percent. The school grounds were preserved, however, and are currently home to six small high schools, established as part of former New York City Schools Chancellor Joel Klein's reform initiatives. But I digress.
In the evenings, Mr. Radef ostensibly worked a second job as a custodian at the Harry S. Truman High School, also located in the Bronx. For reasons that have not been disclosed, investigators began quietly checking up on Mr. Radef in March, 2010. Over the course of a three-month period, they periodically followed the custodian after he had clocked off of his day job at Roosevelt at 4:00 p.m. One one occasion, Mr. Radef drove to the Truman campus, where he was supposed to work from 5:00 - 11:00 p.m., dropped off a passenger, and drove home to Queens. On other occasions, he was followed to restaurants. Using automated toll pass records, investigators were able to ascertain that Mr. Radef had crossed bridges leading from the Bronx to Queens during work hours on more than 550 work days.
But wait, there's more! Apparently, Mr. Radef had an accomplice in the person of Nicanor Fernandez, the main custodian at Truman and the individual responsible for signing off on Mr. Radef's time cards. Not only did Mr. Fernandez give Mr. Radef a free pass, he also set up part-time "ghost jobs" for a number of people whose actual work consisted of servicing nine properties owned by Mr. Radef, in Queens. According to New York City Schools Special Commissioner of Investigation Richard J. Condon, the "ghost" workers were also providing kick-backs to Mr. Radef, who, according to this New York Daily News article, was paid $170,000 last year by the school district (not counting the kick-backs).
That's not all! Mr. Radef didn't limit his caper to Truman High School. He also created phony jobs on the Roosevelt Campus, and at Public School 158 in Queens, where he was formerly employed, and which is undoubtedly situated closer to his properties.
According to the NYT article, Commissioner Condon was said to have remarked, "There were 9 or 10 people who were either not working at all, or were working for Mr. Radef personally. It's hard to envision how some supervisor did not pick up on that."
As a final kicker, while all the "ghost" workers have been fired, and Mr. Fernandez has resigned, union safeguards would appear to have made it difficult for the city to terminate Mr. Radef, who has been reassigned while the city tries to part company with him. |
Quick Takes
DC Opportunity Scholarships Update
After the Scholarships for Opportunity and Results (SOAR) act was passed by the U.S. House of Representatives, the measure faced an uncertain future in the Senate. Though co-sponsored by California Senator Dianne Feinstein, the bill, which proposes to reauthorize the nation's only existing federal school voucher program, appeared to lack a sufficient number of votes to win passage in the upper chamber. It has now been learned that the SOAR act has been incorporated in the bipartisan budget deal that emerged from last week's eleventh-hour negotiations. If Democratic congressional leaders put the brakes to attempts to strip the voucher component out of the package, the program should win passage and obtain President Obama's signature.
A Change in New York City
In a stunning reversal for New York City mayor Michael Bloomberg, Cathie Black has resigned the post of Schools Chancellor just three months after her appointment. Ms. Black, 66, the former CEO of Hearst Magazines, was hand-picked by Mr. Bloomberg to head the nation's largest public school district, following the retirement of Joel Klein. With no experience in the field, Ms. Black's appointment was questioned by many in the education community. According to this Los Angeles Times article, Ms. Black committed a number of gaffes to which both parents and educators took offense. As an example, the paper notes "At one point she suggested to parents concerned about overcrowding in schools that birth control might be an answer. At her next public meeting she was booed by parents waving condoms." Poll results released just prior to Ms. Black's resignation indicated that her approval rating had fallen to 17 percent. Mayor Bloomberg has indicated that he intends to appoint longtime education advisor Dennis Walcott to fill the position. " We both agreed the story had really become about her and away from the kids, and that's not good," commented the mayor.
Read the CAPE Outlook
The lead article in this month's edition of the CAPE Outlook newsletter details the U.S. House of Representatives passage of HR 471, a bill that would extend the life of the nation's only federally funded school voucher program for another five years. The newsletter also features a summary of presentations made to a gathering of CAPE board members and state-affiliate executives by members of Congress and congressional staff members in Washington DC last month. Readers will also find commentary on "Ten Elements of High Quality Digital Learning," and the Outlook's always popular "CAPEnotes." The CAPE Outlook newsletter is published monthly during the course of the school year by the Council for American Private Education. Ravitch Ravages Vouchers
Writing in Education Week's Bridging Differences blog, New York University Professor Diane Ravitch questions why school vouchers seem to be making a comeback. Her take: it's all about money: "Imagine that: voucher schools may not educate kids better, but they can do the job at half the cost. That's powerful, and it reveals what matters most these days: not improving education, not encouraging creativity and innovation, but cutting costs." Her thesis evoked the following response from Stuart Buck: "Yes it's a powerful argument. Put it the other way around: You want to deny Milwaukee poor kids choice and freedom, not to improve their education, but just for the sheer sake of spending twice as much money as necessary. How does that make sense?" Does it not occur to Professor Ravitch that if private schools can secure the same results at less cost to the public, the resulting savings could be used to fulfill her public school wish list? |
A Somber Realization
Following the melodramatic, eleventh-hour denouement of last week's federal budget wrangling, one is left to wonder whether our nation has ever been so politically riven. The answer, of course, is that we have. It was 150 years ago, yesterday, on April 12, 1861, that Confederate troops under the command of General Pierre Gustave Toutant Beauregard bombarded Fort Sumter, marking the beginning of the American Civil War. The War Between the States produced over 1 million casualties - about 3 percent of the total U.S. population at the time - equivalent to 9.2 million persons, today. It is estimated that the Civil War was responsible for roughly as many casualties as those suffered in all other U.S. wars, combined.
By comparison, our recent political rancor acquires the gravity of a fraternity house food fight. But the Civil War was, as they say, then, this is now, and it seems that whether one sets one's sights on Sacramento or Washington, one encounters increasingly mean-spirited partisanship accompanied by either an unwillingness, or inability on the part of the two major political parties to work together.
Which is why the passage of the No Child Left Behind Act must be regarded as a truly remarkable accomplishment. NCLB was the designation given to the most recent reauthorization of the Elementary and Secondary Education Act, the massive federal education law originally enacted in 1965 as part of President Lyndon B. Johnson's War on Poverty. A number of its key components represented new, significant reforms that would quickly prove to generate controversy. These included:
- the provision that all public school students were to achieve proficiency in reading and math by the year 2014;
- the requirement that a school or district's adequate yearly progress was to be measured by examining achievement test data that was disaggregated to spotlight the performance of specific sub-groups;
- the imposition of punitive measures for schools and districts that consistently failed to demonstrate sufficient improvement;
- the provision of supplementary educational services by providers external to consistently underperforming school districts, and,
- the mandate that all teachers become "highly qualified."
What is, perhaps, most noteworthy about the creation of NCLB is that the drafting, crafting and passage of the new law was accomplished in less than one full year after President George W. Bush was sworn into office. The White House had changed parties. Not only had Republicans captured the Presidency, they held majorities in both houses of congress, as well. And yet, NCLB was very much a bipartisan accomplishment. If a picture tells a thousand words, this photo underscores that observation. The photo was taken as NCLB was signed into law by President Bush. In the background, the late Senator Edward Kennedy and Congressman George Miller can clearly be seen. The two men, who at the time served as the ranking Democratic members of the Senate and House committees overseeing education, respectively, flew to Ohio for the occasion. (The signing ceremony was conducted in the home district of Representative John Boehner, who then chaired the House Committee on Education and the Workforce.) How were they able to do it? The answer, I think, comes with a somber realization. The No Child Left Behind Act was signed into law on January 8, 2002. Which means that the key compromises and crucial votes on the law took place in the shadow of the 9/11/2001 attacks. For an all-too-brief period of time, Democrats and Republicans were able to set aside their differences, and find common cause. Sadly, it may have taken a national tragedy for our elected leaders to bridge their differences and display genuine collaboration. Let us hope and pray that today's leaders can muster the resolve to realize similar achievements, absent another calamity. To prolong the current acrimony is a tragedy in its own right. Ron Reynolds |
Publication Note
The next edition of the CAPSO Midweek E-Mailer will be published on April 27, 2011.
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