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Sometimes, You Shouldn't Keep Your Mouth Shut

Arizona Daily Wildcat

Something is definitely amiss about the United States Supreme Court keeping its mouth shut. That is exactly what it did on Oct. 4, when it failed to review an Arizona Supreme Court decision upholding the state's tuition tax credits for private schools. By not saying a word, the U.S. Supreme Court legitimized the Arizona Supreme Court's decision.

Besides being a direct violation of separation of church and state, this decision makes legitimate, a law that was unfair from its conception.

Let us reminisce: In 1997, the Arizona Legislature passed a law that allowed individuals to donate $500 to private school tuition organizations. People can donate their money to organizations that give scholarships to private and parochial schools and get a government tax credit in return.

Because the law was clearly unconstitutional, it was hard pressed to actually pass. In order to push it through, the sponsors of the legislation attached a tiny clause that ended up being the only legitimately constitutional part of the legislation. This clause gave public schools the tax credit advantage as well.

Basically, the whole thing was backwards.

Instead of doing its job by helping public schools, our Arizona legislature found it imperative to give private schools the tax credit benefit first, and attach the public school clause as an afterthought in order to get the bill passed.

The state legislature is filled with people whose agendas for Arizona's education system do very little for public schools in general. Proponents of the legislation, such as Arizona Representative Dan Schottel, R-Tucson, admitted this when he said the bill was "thinking more about the kids than the schools."

Perhaps the Arizona legislature should be thinking more about strengthening Arizona's underfunded public school system (which would benefit kids much more) than giving tax credits to private schools.

Thankfully, the legislation has been beneficial to Arizona public schools who have received extra funding. Though the $200-per-tax-year-limit is much less than what private and parochial schools receive, it has been critical to many public school programs

The entire state's public schools received nearly $9 million in tax credit donations in 1998. Ironically, the most beneficial aspect of this legislation was merely an afterthought that was vitally needed to push the bill through.

And when the bill was questioned for its constitutionality, this "afterthought" portion of the bill was not, because there was no question as to the legitimacy of public schools receiving tax credits.

On the other hand, the private and parochial school tax credits were dragged almost immediately to the Arizona Supreme Court after being sued by the Arizona Education Association where it was, unfortunately, upheld.

Arizona Chief Justice Thomas Zlaket wrote the majority opinion in which he pointed out that the tax credit money is diverted before it reaches the state treasury, so it is not subject to constitutional restrictions.

Zlaket is making the same mistake that Schottel and other legislators did. The tax credit money that is being diverted to private schools could be more effectively used for this state's public school system.

Most significant, the mistake was made for a third time at the highest level of American justice. When the case was brought to the United States Supreme Court, it was essentially ignored into legitimacy. It was like a judicial pocket veto.

Why would the court, whose responsibility is to uphold the Constitution, see a legislative collision between church and state and give it a green light?

Thankfully, the battle is not yet over, and the Supreme Court's ruling is not God's word. By not issuing an opinion, future decisions regarding the same tax credit issue could benefit public schools - but they could also harm them. They could be influenced by organizations like the AEA who are fighting for public schools, or it could continue to cater to legislators who are doing everything they can to weaken public schools.

By keeping silent, the U.S. Supreme Court has aggravated a rivalry between public and private schools that is likely to get much worse before it gets better.

It's amazing the influence the court can wield by not saying anything at all.