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U.S. Supreme Court Decision Could Help New Jersey's Opportunity Scholarship Act

High court rules that so-called tax-credit vouchers can be used for religious schools.

It didn’t get the attention of the justices’ ruling for private school vouchers in 2002, but the U.S. Supreme Court’s decision this week allowing vouchers by tax credit could have more impact on what has become the dominant approach to school choice in New Jersey and other states.

A number of states have plans in the works for programs that would provide vouchers for low-income students to attend private and religious schools. The distinction that has made them so popular is that the so-called scholarships would be funded by private contributions that would, in turn, earn tax credits.

In New Jersey, it’s the proposed Opportunity Scholarship Act (OSA), now sitting in the legislature and closer than it has ever been to passage. Another seven states have similar programs in place, including neighboring Pennsylvania.

And it was the decade-old program in Arizona that was the focus of the U.S. Supreme Court’s decision on Monday, which turned down a challenge by a group of taxpayers that claimed the tax credits were essentially public dollars being spent on religious schools.

In a 5-4 decision, the high court came down on procedural grounds, saying the group didn’t have the standing to challenge the program, since it had shown no direct harm or suffering.

Further, the court’s majority made clear its sentiment that privately funded scholarships -- even if rewarded by tax credits -- do not represent a public expenditure on religious schools, a big boost to programs like New Jersey’s, which are sure to face legal challenges, if enacted.

Private Dollars

"The majority clearly viewed these as private dollars," said Richard Komer, senior attorney for the Institute for Justice in Washington, D.C., and outspoken litigant for such programs. "It’s private individuals donating private dollars to private scholarships for private parents to send their children to private schools."

"It’s definitely a step in the right direction," he said yesterday. "It makes it more difficult for the usual suspects to round up taxpayers to challenge these programs."

Yet that doesn’t mean there won’t be challenges, certainly in New Jersey, with the First Amendment argument over church and state never far from critics’ lips.

And some of those opposed to OSA said their arguments still stand, even in the face of the Supreme Court’s ruling. They cited that it was limited to the issue of legal standing, and there remained other avenues for challenge, especially in regard to New Jersey’s constitution, which specifically speaks to the state providing for only public education.

"It is certainly not inconceivable that the New Jersey court could apply the religion clause more broadly than the First Amendment," said Paul Tractenberg, a professor at Rutgers Law School who founded the Education Law Center in Newark.

"I think there are a lot of reasons this decision would have limited weight on a challenge to a New Jersey statute," he said.

Still, he acknowledged the court had made a new distinction that at least politically favors those seeking such programs in New Jersey and elsewhere.

“They have made a new distinction between government funds on one hand, and tax credits on the other," he said, "That’s never been delineated before."

Gov. Christie this week applauded the ruling as well, and said that it provides still more reason to enact OSA. The bill is now sitting in the Assembly, awaiting a hearing before the budget committee. It has passed two committees in the Senate.

But jockeying has continued as to the details of the final bill, how many districts would be included and how many students. The latest version calls for 40,000 students over five years from 13 pilot districts with low-performing schools.

Christie said Monday that the window is fast closing for having the program in place for students to enroll for next fall, meaning at least another school year would pass.

"That should end any discussion of whether its constitutional or not," Christie said on Monday. "Let’s get this posted, and let’s get a vote."

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