Education Law Review - Providing education law and policy information and analysis

Next week the House Education and Workforce Committee and Senate Health, Education, Labor and Pensions Committee will hold hearings on February 5 (Tuesday) and 7 (Thursday) respectively.  Ed and Workforce meets at 10:00 a.m. on the fifth in Room 2175 to consider training and workforce issues, federal actions that impede job growth, K-12 education reform efforts, state efforts to lower college costs, and higher education transparency.  Governor Gary Herbert of Utah, Virginia Secretary of Education Laura Fornash, President and CEO of the National Association of Manufacturers Jay Timmons, and Senior Fellow Dr. Jared Bernstein of the Center on Budget and Policy Priorities headline the witness list.

In the Senate, the Health Education, Labor and Pensions Committee will meet at 10:00 a.m. on February 7 in Hart 216 to look at lessons learned on No Child Left Behind State Flexibility Waivers.  A witness list has not yet been released.        

In the latest challenge to Arizona’s tuition tax credit program (Arizona Christian School Tuition Organization v. Winn.pdf) taxpayers sued Arizona claiming the state’s tuition tax credit program was unconstitutional under the Establishment Clause.  Under the program, one can receive a state income tax credit for contributions to school tuition organizations.  School tuition organizations, in turn, use the contributions to provide scholarships to students attending private schools, including religious schools.

The question before the Supreme Court was whether the taxpayers had standing to pursue the claim.  The plaintiffs claimed standing on only one ground—that they happened to be taxpayers.  Under Article III of the Constitution, to get into court and have a dispute heard on the merits, a plaintiff must establish standing.  Standing requires injury in fact, a causal connection between the injury and the conduct complained of, and a conclusion that it is likely (not speculative) that the injury will be redressed by a favorable decision.

In a 5-4 decision of April 4, the Supreme Court held the taxpayers lacked standing to challenge the state law.  The plaintiffs failed to establish they suffered any harm or injury as a result of the state’s establishment of the tuition tax credit program.  Any benefit to religious schools was not the result of the government’s spending choices; rather, the benefit to religious schools was the result of the decisions of private individuals giving to school tuition organizations. 

What is the take away? For the citizen, it’s all “inside baseball”—a technical discussion of the law of standing (yawn), but a decent tax benefit.  For the state legislator and policymaker, it’s a step forward with tax incentives to promote school choice.  For the lawyer, it’s another example of what it takes to get into court—injury in fact.

On January 26, 2011, Speaker John Boehner (R-OH) and Senator Joe Lieberman (D-CT) introduced H.R. 471.pdf and S. 206.pdf, respectively, the Scholarships for Opportunity and Results Act (SOAR Act).pdf (summary), to renew the DC Opportunity Scholarship Program, which expired at the end of the 2009-2010 school year.  The renewed program would provide scholarships of up to $8,000 (elementary school) and up to $12,000 (high school) to families whose income does not exceed 185 percent of the federal poverty level, to attend a DC private school of their choice. 

On the west coast, the choice news is a bit different.  In January 2010, California enacted the refreshing parent trigger law.pdf, which gives parents the opportunity to make major changes to failing schools.  Under the "parent trigger," one-half of parents can, by petition, demand that a failing school be shut down, change its staff, or become a charter school.  In the last few months of 2010, this came to the forefront in Compton, CA, where about 60 percent of the parents at McKinley Elementary School petitioned to turn the failing school into a public charter school.  There’s still a ways to go. According to the Los Angeles Times.pdf, newly-appointed members of the State Board of Education announced they needed more time to review issues associated with the trigger.  The board is responsible for regulations governing the program. Time will tell how it all sorts out.  Stay tuned.