Winn v. Arizona Christian School Tuition Organization

element, PA, Scottsdale, AZ, Tierney litigate the Sacks for opportunity fair Plaintiffs-Appellants. in the prior must have been raised issue “necessarily determined on proceeding Bull, Benjamin Wyman Esquire, Jeremy Simmons, 77 F.3d at 1097 n. the merits.” Fund, Tedesco, D. Alliance Defense Scotts- have the party opportunity 4. The must dale, AZ, Cortman, David Andrew Es- issue; litigate preclusion ap- issue will Fund, quire, Alliance Defense Lawrence- party if the does not take advan- ply even ville, GA, Bickett, Paula Esquire, Terry S. opportunity. of that tage Goddard, Esquire, Attorney Arizona Gen- Irving opportunity had a full and fair Jr., Conti, Frank Esquire, eral’s Office J. prior the issue in the case. He litigate Pheonix, AZ, Keller, Timothy Tempe, D. appealed the habeas decision could have AZ, Defendants-Appellees. for claim there- and raised his denial access so, in. failed to he is Having do barred CV-00-00287-EHC, D.C. No. District of estoppel raising from that claim Arizona, collateral Phoenix.

in this action. judgment affirmed. NELSON, Before: D.W. STEPHEN

REINHARDT and RAYMOND C. FISHER, Judges. Circuit Order; by Judge Concurrence PREGERSON; by Judge Concurrence NELSON; by Judge D.W. Dissent O’SCANNLAIN. WINN, taxpay Kathleen M. an Arizona er; Wolfthal, Diane an Arizona tax ORDER Wolfthal, payer; an Arizona Maurice Lynn Hoffman, an Arizona Judges Reinhardt and Fisher voted to Plaintiffs-Appellants, taxpayer, reject the petitions rehearing en banc Judge Nelson so recommended. peti- The full court was advised ARIZONA CHRISTIAN SCHOOL TU judge tions for en A re- rehearing banc. ORGANIZATION; ITION Arizona quested a vote on whether to rehear the Trust; Moscoso; School Choice Luis banc, matter en and the matter failed to Garriott, capacity in his official Gale majority receive a of the non- of the votes Depart as Director of Arizona active of en judges recused favor banc Revenue; Dennard, De ment of Glenn Fed. P. 35. RApp. consideration. fendants-Appellees. petitions rehearing The three en No. 05-15754. banc, 14, 2009, May filed are denied. of Appeals, United States Court Ninth Circuit. PREGERSON, Judge, Circuit Oct. concurring: Hunter, Humphrey, Esquire, For the reasons stated Isabel M. Yavitz, PLC, Bender, concurrence, I concur in the denial

Humphrey & Paul its also Cohen, Phoenix, AZ, rehearing en Esquire, Marvin S. banc. directly” to assistance NELSON, “provide[d] REINHARDT

D.W. regard religion, in for FISHER, Judges, concurring parents without Circuit institutions en funds reached rehearing public banc: the denial choices about only parents’ as the result of of our judges the active majority A their children’s education. rehearing of this to vote for court declined Parents received aid whether S.Ct. 2460. concur in the court’s en banc. We case they willing to enroll their or not were go to en not banc. decision schools, in so the children sectarian of Arizona finances The State to pressure did not exert gram (STOs) by organizations” tuition “school Ari- religious schools. Under the choose to tax credits indi- giving dollar-for-dollar contrast, by taxpayers, program, zona contribute to them. On its viduals who than direct funds to reli- parents, rather subsidy face, creating this re- the statute organizations. Access to assistance gious scholarships for quires provide STOs to religion, creat- is restricted on the basis any qualified school of students “to attend may par- financial incentives that skew ing Ann. parents’ their choice.” Ariz.Rev.Stat. ents’ choices schools. See toward 43-1089(G)(3) (2005) added).1 § id. at S.Ct. 2460. The differences Department the Arizona of Revenue As Arizona between the Ohio and statute, however, the state re- applies the constitutionally meaningful. that re- contributions to STOs imburses rehearing to use at The dissent from en banc strict their may a Consequently, percent prefer demonstrates others scholarship expansive reading of the state-financed more of Zelman. Care- more however, cases, money available to students whose ful review of the two willing why argument them to sectari- parents are send shows dissent’s squared an institutions.2 “Winn cannot be Su- ” preme Court’s mandate Zelman is not true, Ari- proved If these facts are persuasive. Dissent Department zona of Revenue’s execution (Section 1089) scholarship program of the Background I. violates the Establishment Clause. Simmons-Harris, face, appears its Section 1089 Zelman v. On (2002), provide parental 153 L.Ed.2d 604 choice. The statute says upheld organization qualify a school voucher that for an Court purely perspective, taxpayer 1. All references to “Section 1089” refer to the financial ... a program as forth Arizona Revised Stat- his decision as to whether or set unaffected (2005), § utes Annotated 43-1089 the version not to make an STO The funds contribution. place plaintiffs' of the statute in when com- that he contribute will be unavailable to plaint Any they was filed. differences between this either to him in event: will be used pay and the current version of Section 1089 are make the contribution or to the taxes he contributions, significant analysis. owes.”). purposes Tax deductible contrast, impose taxpayer. a cost on the ("[W]hen taxpayer id. is entitled to a tax 2. The dissent sees no constitutional distinc deduction, taxpayer if not all must most a tax tion between a tax deduction and credit. majority pay instances still of the tax in- disagree. A tax- See Dissent 659 n.3. We volved[.]”). Whereas a tax deduction would eligible an STO costs credit contribution to STOs, Killian, contributions nothing. lower the cost of See Winn v. (9th Cir.2002), tax credit reduces that cost dollar-for-dollar 307 F.3d 1015 n. 5 aff'd zero, allowing in effect individual sub. nom Hibbs v. (2004) ("From directly allocate funds. eligible year to receive state-reim- total STO donations be- an STO organization must complaint bursed contributions fore the was filed. See id. at scholarships “to children allow provide argue appli- 1006. Plaintiffs that it is this any qualified them to attend cation of Section 1089 that violates the Ann Ariz.Rev.Stat. parents’ their choice.” Establishment Clause. added).3 43-1089(G)(3) If § this statute, applied Arizona were how II. Effect Arizona would be similar to the We turn first to the issue of “whether majority programs of the tax credit cur- Section 1089 ‘has the forbidden “effect” of rently operation. Like Section ” Winn, advancing inhibiting religion.’ or contain provisions four of these 562 F.3d at 1012 (quoting 536 organizations pro- to directing scholarship 2460). 649, 122 at S.Ct. scholarships for students to attend vide of their any qualified parents’ A. Parental Choice “parental These choice” clauses

choice.4 of may explain apparent absence The Winn held the Arizona challenges to those Establishment Clause Department of Revenue’s application of programs. Section 1089 not provide parents with not, however, This is how the Arizona “true meaning choice”within the Department applies of Revenue the stat- Zelman. See id. at 1015-18. With re- According plaintiffs’ complaint, ute. conclusion, spect to this the dissent accus- gives reimbursing Arizona tax credits indi- rejecting es the the majority’s viduals who contribute to that ex- STOs holding in Zelman in favor of Judge Sout- pressly restrict their scholarships use er’s dissent. Not so. STO, largest schools. The Organization Tuition of the Dio- Catholic 1. Phoenix, its scholarships cese of restricts The dissent fails to address the crucial to use at Catholic schools the Phoenix difference between the pro- Ohio voucher Diocese; largest, the second the Arizona gram upheld in Zelman and the Arizona Organization pro- Christian Tuition School Department application of Revenue’s scholarships only vides to students attend- respect religion, Section 1089: with schools; ing evangelical Christian and the program gave parents Ohio equal access largest, Brophy Community third Founda- tuition benefits. See 536 U.S. tion, restricts its to use at two 645, 122 S.Ct. Under the Ohio specific Catholic schools. See gram, provided the state tuition aid F.3d at 1006. As a result of how the need, regard basis of financial without Department applies Arizona of Revenue 1089, plaintiffs religion, eligible parents free allege, Section these three were school, STOs controlled percent apply any private the aid toward 220.187(6)(h); "qualified § 3. A school” is defined statute as Fla. Stat. Ga.Code nongovernmental primary 20-2A-l(3)(A); "a school or sec- § § Ann. Ind.Code 20-51-3- ondary preschool handicapped school or 1(b); lS(5)(c)(l); § Iowa Code 422.1 R.I. state, students that is located in that does 44-62-2(a). § Gen. Laws One of the current- race, color, not discriminate on the basis of ly operating programs pa- contains no such handicap, origin familial status or national provision. rental choice See 24 Pa. Stat. Ann. requirements prescribed and that satisfies the § 20-2005-B. law for schools in this state.” Id. 43-1089(G)(2). § to a broad class of citi secular, directly toward a assistance or (emphas partic- zens.” willing the district school outside Mueller, was). added); see also (though none es in the ipate 3062; Dep’t v. Witters Wash. her child to to send parent If a decided Blind, 481, 487, school, a check Servs. state wrote (1986); Zo 106 S.Ct. parent, which payable made Dist., 509 Foothills Sch. over to her brest Catalina then endorse parent could 646., 125 L.Ed.2d S.Ct. U.S. See id. chosen school. (1993).5 Likewise, under the Ohio voucher choice to send Crucially, parent’s stressed, “[pjrogram program, nei- Court religious school would child to a her fami participating to receiving of are available her chance help nor harm ther benefits terms, no to neutral with reference lies on tuition aid. Zelman, at religion.” 536 U.S. program a violates such Whether added). (emphases S.Ct. held, Clause, the Court Establishment contrast, allege the Ari- parent By plaintiffs as on whether depend does not applies Revenue array Department of zona of aid has a broader receiving tuition statute, to 1089-funded to choose access Section than secular schools religious “available ... on neu- scholarships is not is because constitution “[t]he from. This terms, religion.” to program tral with no reference ality a neutral educational aid of their why, unwilling Parents who are to send not turn on whether and simply does time, area, be denied particular religious at a child to in a particular because, benefits by religious program are run access most schools not a plaintiffs allege, there are sufficient recipients or most choose organizations, at scholarships at available for use religious school.” Id. number of use the aid at added). Accordingly, par- secular these (emphasis schools. S.Ct. 2460 clear, however, program altogeth- ents are shut out of the made majority Zelman er, them program”— very and at the least chances that a “neutral educational aid it, harmed their or, “program receiving benefits are put as the Court also their child to a secular grants choice”—is one that choice to send true regard without to reli school. access to benefits 658, 662, 122 at

gion. Id. S.Ct. religiously neu- This lack of access on explains why ac- tral Section 1089 as providing equal basis importance Department of throughout operated by the Arizona emphasized cess to benefits is running Revenue would violate the Establishment A common thread Zelman. entirely conclusion is consis- aid the Su- Clause. This through indirect required tent with—and Court’s preme upheld against has Establish- Court —the It is true that challenges, analysis the Zelman Court Zelman. ment Clause rejected observed, they majority in Zelman Justice Sout- is that been “neutral have religious that the number of religion[] provide[d] er’s view respect Mueller, institutions their own program upheld in Zelman ex- aid to schools or 5. The ” " (em- choosing.” provided parents’ 122 S.Ct. 2460 plained, aid to 'all Likewise, added). program up- phases pay expenses at secu- for certain educational " ' neu- distributed] Zobrest benefits held in lar ” disabled,’ Mueller, trally qualifying as (quoting child 122 S.Ct. 2460 3062). religion. pro- regard to without U.S. at Under Zobrest, continued, added) Witters, (quoting "recipi- gram Zelman 2462). generally empowered direct the were ents participating overwhelming schools in the Ohio disparity in the number of relevant program scholarships exclusively voucher was to its con- available for use stitutionality. But before the ad- compared Court to the num- concerns, ber dressed Justice Souter’s it first available for use at secular schools. several features of the 562 F.3d at identified Ohio gram made it one “true Consistent with parental Section 1089’s ..., choice and thus constitutional.” Id. provision, choice see Ariz.Rev.Stat. Ann. features, Among these the tuition aid dis- (2005), § 43-1089 the Arizona Department program tributed under the Ohio created of Revenue could apply “no ‘financial incentives’ ‘skew[ed]’ require that STOs make state-funded toward schools.” Id. “available to both (alteration omitted) Witters, (quoting 474 and secular beneficiaries on a nondiscrimi 748). The Court natory basis.” 536 U.S. at 653- recognized that incentives ‘are not “[s]uch (internal 54, 122 S.Ct. 2460 quotation present where the aid is allocated on the marks If Section 1089 were ap neutral, basis of secular criteria that nei- manner, plied this neutral data concern religion, ther favor nor disfavor and is ing the number of scholarships applied religious made available to both and secu- religious toward schools versus secular lar on a nondiscriminatory beneficiaries schools would indeed be irrelevant to the 653-54, basis.’” 122 S.Ct. 2460 Establishment Clause inquiry long as as added, ellipses alteration and the State of Arizona provided otherwise omitted) Felton, (quoting Agostini v. range students “a educational [secular] 203, 231, 117 S.Ct. 138 L.Ed.2d choices.” Id. at S.Ct. 2460. (1997)). As currently Section 1089 is applied, however, program allows state-funded Department Arizona of Revenue scholarships to be restricted to use at reli- permits scholarships funded under Section gious schools. It necessary is therefore 1089 not to be “made available to both whether, in reality, consider program religious and secular beneficiaries on a creates incentives for to send their Therefore, nondiscriminatory basis.” Zel- religious children to order to requires man a closer look at whether the gain access to benefits. This conclusion is program, applied, creates in- “financial least, required by and, very at the consis- program centives skew the toward — tent with—Zelman.6 religious schools.” Id. 122 S.Ct. (alterations quotation and internal

marks why This is it is relevant that, by allowing tax credits for contribu- The dissent contends that the Arizona STOs, discriminatory tions to program the Arizona is valid because the of Ari- State Department of Revenue has created an zona has place other that pro- hypothetical, (2004) 6. The dissent's a (rejecting about world in 158 L.Ed.2d 1 Free Exercise operates which Section 1089 to restrict schol- challenge providing to statute postsecondary schools, arships premised to use at secular is scholarships prohibiting education use of that, misunderstanding on the under the Free degree for a in devotional Clause, governments Exercise have an affir- institution). theology a from Consti- obligation mative to fund education- support tutional limitations on do options they op- al if decide to make secular precisely mirror limitations on failures to tions available. See Dissent 661-62. But see support religion. Davey, v. Locke 540 U.S. 124 S.Ct. program is to cre- mistakable effect for those options educational vide secular child to incentives to send one’s special ate scholarship. program unable to obtain school. a sectarian (“The question Clause Establishment reading of the dissent’s Under coercing parents into is whether Ohio easily would hypothetical program schools, children to sending their chal- an Establishment Clause withstand by- answered question must be Anyone participate can lenge. Cleve- receives options provides Anyone participates all Ohio who evaluating gram. schoolchildren, Anyone apply of which is to tax can only one identical benefits. land toward a scholarship and the tax benefits program then obtain More- or her choice. See Dissent 660. add- his (emphases school.” choose a over, partici- not to for those who choose ed)). recognize Zel- The dissent fails provides the state an program, in the pate of “true holding that a man’s schooling options. See id. array “[p]rogram choice” is one which at 666-67. participating fami- are available benefits terms, with no reference to lies on neutral it hypothetical; is not a This A 122 S.Ct. 2460. religion.” Id. scheme invali- the New York tax deduction why show the dis- hypothetical short will Public Education dated in Committee for is untenable. reading of Zelman sent’s Liberty Nyquist, Religious & program, a state Consider instituted (1973)— 756, 93 S.Ct. edu- array of secular provides distinguished that Zelman but de- case tax deductions options, cational offers Nyquist, 413 U.S. clined to overturn.7 See exclusively parents sending to their chil- (“In 788, attempt its to at 93 S.Ct. 2955 eligible private par- to schools. Each dren to opportunities poor enhance the of the tax unrelated to ent receives a deduction public nonpublic edu- choose between tuition, spent ensuring amount on thus the cation, step has taken a which State parents to who send chil- a windfall their only regarded ‘advancing’ can be as one schools, typically to which Zelman, 661, dren at 122 religion.”); “ ” than charge lower rates secular ‘function’ (observing S.Ct. 2460 that the hypothetical pro- schools. Assume this program of the New York “was ‘unmistak- purpose. For gram has a valid secular ably provide support to desired financial ” however, potential recipients, bene- most sectarian institutions’ nonpublic, are, 783, program practical as a (quoting Nyquist, fits under S.Ct. added))). matter, recipient if the ex- available Zelman relatively re- plained Nyquist “expressly chooses to send her child to a had Thus, respect to ‘a case judgment the un- served low-cost school. program program provisions York if it had been considered in 7. The New York also had offering ments, Zelman, private school tuition reimburse- 536 U.S. at isolation. See school, parents paid directly to the (observing program New S.Ct. 2460 York who fell below a certain income level exclusively "gave package a of benefits to grants private schools for the.maintenance to parents of schools and the repair of their facilities. The Court treat- "provided tax school enrollees” and benefits provision program as severable ed each of the money actually the amount of 'unrelated to provision separately that each violat- and held tuition,' ensuring by any parent expended Nyquist, ed Clause. See the Establishment of children in windfall 791-95, Nothing 413 U.S. at 93 S.Ct. 2955. (quoting Nyquist, 413 U.S. at schools” suggests up- have in Zelman the Court would 2955)). provision S.Ct. held the tax deduction of the New involving exaggerates some form of assistance dissent reliance on scholarships) general- made available Larkin. (e.g.,

ly regard to sectarian-nonsec- without Larkin does not control this case. See tarian, public-nonpublic nature of the Winn, 562 F.3d at 1020 (emphasizing that ” (quoting Ny- Id. institution benefited.’ delegation “the of scholarship funding to 2955). quist, 413 U.S. 93 S.Ct. taxpayers, individual such as in Section fit program descrip- The Ohio voucher promote religion does less to than Department tion. The Arizona of Reve- delegation zoning authority application nue’s of Section 1089 does not. churches,” provided such as under Larkin). Rather, statute at issue in “Ny- the Court clarified that panel observed that holding Larkin’s quist govern does not neutral educational illustrates that when a delegates statute programs that ... offer assistance aid di- power ordinarily “a in agencies vested rectly to a broad class of recipi- individual government” a private party, see regard religion.” without ents defined [Larkin, U.S.] 2460. According without reasonable assurance that dissent, Section 1089 is such “neutral party’s choices will advance the secular program.” By educational assistance statute, purposes ensuing however, logic, dissent’s the New York “perceived endorsement of a Nyquist invalidated would also message” may “reasonably be attri- program. be such a Even more trouble- government. but[ed]” some, provided tax deduc- Winn, (second 562 F.3d at 1020-21 quota- exclusively parents sending tions their tion from 536 U.S. at to religious children schools would also 2460). constitute “neutral educational assistance Contrary to suggestion, the dissent’s program” long as the state had other holding Larkin’s is not limited to cases place provided where the state governmental pow- vests result, educational It options. is this ers in a “pervasively organiza- sectarian the outcome in “that simply cannot tion.” In Dissent 668. Board Edu- be reconciled with Zelman.” Dissent 661. Kiryas Village cation Joel School Supreme not to Court elected over- Grumet, 687, v. District 512 U.S. 114 Nyquist, may turn and we not do so on its (1994), S.Ct. behalf. example, applied the Court Larkin when an considering Establishment Clause Taxpayer B. Choice challenge to a statute a creating Next, the dissent challenges the district a religious coextensive with com- conclusion that provided munity. the choices to tax- power This statute vested payers that, under Section 1089—choices taxpayers, individual not in a plaintiffs allege, parents’ organization, restrict access to but the Court nonetheless secular educational scholarships to invalidated it. See id. at 114 S.Ct. —fail (“The program render the constitutional. See 2481 prob- Establishment Clause Winn, 562 Specifically, F.3d lem [at is more subtle that issue] [than ], the dissent contends the panel misapplied Larkin it resembles the issue Den, Inc., Larkin Grendel’s raised in Larkin extent (1982). 103 S.Ct. 297 L.Ed.2d earlier case teaches that a State reading A careful delegate authority of Winn shows that the not its civic to a “the circuit program therefore ensured according to a chosen group criterion.”). sug- does not Again, Winn was bro- government and between delegated to tax- choices gest public a school’s deci- Although ken.” Id. Department of the Arizona under payers a could indeed accept sion not to voucher of Section construction Revenue’s of the Ohio purpose frustrate the secular equivalent of are the constitutional rely Supreme Court did not program, the in Kiryas at issue Joel. action legislative the program choices to conclude on those however, clear, makes That case was constitutional. identified in Larkin concerns delegation reasonable, in- to whether contrast, rely are relevant By appellees in Winn that the would conclude observer formed arguing that the taxpayers’ choices delegated under Section choices of Section 1089 is val- current construction or hinder- promoting, the effect of have under the Establishment Clause. id purpose.8 ing, program’s choices, however, effect of these argues further that in terms The dissent ability aspiring may be to ham the constraining parents’ access to secular scholarship recipients to obtain a scholar- un- options, taxpayers’ choices educational ship for use at a secular school. available are no more constitution- der Section 1089 “delegat[es] Accordingly, Section public than choice of ally problematic that, perspec- a choice from the participate the Ohio program’s recipients, tive of the aid ‘delib- in Zelman. Dissent 668. program voucher erately incentives toward skew[s] point. misses the Under the Ohio This ” Winn, (quot- 562 F.3d schools.’ it was not the schools’ program, Zelman, ing that ensured “the Establishment choices 2460). not, choices are in them- Such implicated” was not was Clause —it selves, to render educational sufficient choices. 536 U.S. at parents’ program aid valid under Establish- parent equal 2460. Each had an ment Clause. choice under the Ohio apply a tuition voucher toward whether summary, it was crucial to Zelman’s school, choice of one holding afforded aid the Ohio directly array did not alter the parent pri- recipients “genuine independent parent. to another Ac- options available vate choice” whether to direct the assis- cordingly, program, par- under the Ohio they toward a tance received her ent’s choice as to how best to educate 536 U.S. at school. child had no coercive effect on another Although Department the Arizona whether to her child parent’s choice send application of Section 1089 Revenue’s to a secular or school. The Ohio choice, does not afford such Winn careful- provided par- thus each eligible ly provided determined that the choice “genuine pri- ent a and independent with taxpayers is insufficient to ensure “the vate choice” whether to direct assistance government circuit between (emphasis to a school. Id. add- ed). carefully given to under was broken.” Id. For reasons The choices function, and the state’s decision 8. The dissent asserts that the "allocation of govern- scholarship funds” is not a traditional to reimburse contributions to scholar- mental function. Dissent 668 n. 20. This poli- ship indisputably an educational funds is unhelpfully framing question narrow. cy decision. policy certainly a Educational traditional decision, added). out in the our court was 670 laid The dissent makes en banc review. correct to decline this claim without citing evidence con cerning what legislature actually knew Purpose III. Secular likely about how Section 1089 would oper well, just ate. This is because no such for con- The dissent also faults Winn yet evidence appears the record. a But cluding that Section 1089 lack valid it purpose. suggests secular See 562 F.3d at 1011-12. dissent should not matter premature. question This criticism is to us legislature whether the knew that before the was “not whether Section Section 1089 would result in disproportion in fact has a genuine, pur- secular ate funding being made available for pose, plaintiffs whether prove, could use at Supreme institutions. The alleged the facts in the that it complaint, us, however, Court has cautioned against not.” at 1012. does evaluating program’s purpose from the perspective of an objective “absentminded states, “legislature’s As the dissent observer, presumed not one to be familiar enacting stated reasons” for a statute “will deference,” history generally get government’s and must be ac- of the ac cepted except as true in “unusual cases tions and competent to learn what history sham, the claim was an or apparent where has to show.” McCreary, 545 U.S. purpose secondary.” short, 125 S.Ct. 2722. In the dissent ap McCreary County v. Ky., ACLU 545 pears to heightened call for either a plead 844, 865, 162 L.Ed.2d ing standard for Establishment Clause (2005). into inquiry whether a claims—under plaintiff which the must al purpose statute’s ostensible ais sham or lege specific establishing facts leg secondary religious objective, to a howev- an purpose islature acted for invalid —or er, must be “undertaken perspec- from the approach an to evaluating program’s observer, objective tive of ‘an one who purpose “would cut context out of the takes account of the traditional external enquiry, point of ignoring history.” text, signs up legislative that show in the S.Ct. 2722. history, statute, implementation of the ” Winn, official comparable act.’ Regarding evidence of Section 1089’sim- (quoting McCreary, F.3d 545 U.S. plementation, the dissent contends be- 2722). posi- The dissent’s cause contributions to STOs are would inquiry. tion foreclose such an conduct, they are irrelevant whether Section 1089 has a valid secular The dissent in enacting surmises that purpose. Notably, in as-applied con- 1089,“[t]he legislature hardly Section could text, at least two circuits have considered ‘purpose’ endorsing have had the reli- private conduct government pro- under a that, gion up plan when it set all it knew, gram to probative program’s have be absolutely could resulted no funding purpose,9 entities.” Dissent Winn does not foreclose the Tex., Staley County, 9. See v. Harris purpose. 461 F.3d the monument had a valid secular (5th Cir.2006); (‘‘[T]he Bonham v. D.C. Li- See 461 F.3d at 513 fact that the Admin., monument, Bible, brary 989 F.2d 1244-45 with the stood without (D.C.Cir.1993). Staley, complaint thirty-two years, In the Fifth Circuit [from citizens] community response gov- supports original purpose considered the to a the that the notion ernment-sponsored objectively predominantly monument a local citi- of was not seen as Bonham, Mikva, carrying evaluating religious.”). Judge zen a Bible in whether re- that, allegations plain- of according to point pri- to can plaintiffs that possibility to taxpayers lets choose complaint, whether Section tiffs’ of probative conduct vate proba- More to purpose. make state-reimbursed contributions a secular 1089 has however, conduct tive, government but al- scholarship organizations, private in Arizona State of part of the to on the to restrict access organizations lows the implementing Section of scholarships on basis state-funded correctly held that such religion. Winn im- of Revenue Department The Arizona not, pro- under program would allowing individ- plements Section “genuine indepen- and parents vide credits for contributions to claim tax uals choice,” the choice and private dent 562 F.3d private to STOs. program under such a (“The to recognized given has Supreme Court as the constitutional as tax could not be treated policies tax such ... that state deductions, given parents tax credits to exemptions equivalent tax of the choice ... assis- Unlike of‘channeling program. [state] means the Ohio voucher are under (em- organizations....” al- program tance’ to program added, original) (quoting ellipses phasis scholarships here neither makes leged 3062)). Mueller, religiously neu- available complaint, the Ari- According plaintiffs’ them a true gives tral nor basis of Revenue allows tax Department zona to utilize the scholar- choice as to where pro- for contributions STOs credits correctly held that these ships. schools. vide true, allegations, proven if could establish that dis- contributions STOs Individuals’ violation. We an Establishment Clause not, of criminate on the basis rehearing of therefore concur the denial themselves, probative of Section 1089’s en banc. fact that the Arizona De- purpose. The tax credits for partment gives of Revenue O’SCANNLAIN, Judge, Circuit contributions, however, could be these rehearing from the denial of en dissenting to how legislative expectations bative KOZINSKI, banc, joined by Judge, Chief would under state assistance Section GOULD, TALLMAN, KLEINFELD, practice. be directed SMITH, BYBEE, BEA, and N.R. Circuit by declining to rehear this Accordingly, Judges: banc, rejected appropriately case en we This case involves Establishment turn a blind suggestion we should challenge to an Arizona educational Clause history implementation eye to the provides tax credit scholar- the statute is simply because Section wishing to attend facially ships students neutral. notable, This case is more howev- IV. Conclusion er, it involve: state for what does not advancing religion. govern- action required apply This case any aid to reli- aid ment does not direct Zelman to an educational implementa- participated under in the enactment versing the district court’s dismissal 12(b)(6) pro plaintiff's challenged practice, se claim that Rule law or histori- tion of closing public library context, on Easter Sun- of a sequence of events lead- cal Clause, day the Establishment ob- violated passage the initiation ing to the of the law or determining legislative pur- "In served: (em- practice.” 989 F.2d at 1244-45 practice, pose courts of a law or added). phasis testimony parties who generally look to ....

659 government Nor does the educational tax-credit gious school. schemes states promote, or incentiv- nation encourage, legisla- otherwise across the and could derail four ize actors to direct aid to tive efforts in states within our circuit Rather, short, programs.1 “state aid reaches reli- create similar of solely as a gious schools result conclusion invalidates an increas- independent of ingly popular numerous decisions method for providing school Simmons-Harris, choice, jeopardizing individuals.” Zelman v. oppor- educational 2460, 639, 655, 122 536 153 tunities hundreds of chil- U.S. thousands of (2002). L.Ed.2d dren nationwide.2 to find state ac- Unable forbidden I tion, district court dismissed correctly (“Section 1089”) pleadings. Sadly, on the our the case Arizona law indi- allows v. reversed. See Winn three-judge voluntarily money viduals to contribute Org., 562 private, Ariz. Christian Sch. Tuition nonprofit corporations known (9th Cir.2009). (“STOs”). a F.3d 1002 Because organizations” “student tuition 43-1089(A). neutral- gram scrupulous “governmental § Ann. Any- Ariz.Rev.Stat. ity religion STO, and and be- religion, between one can form and there are no Epperson nonreligion,” tween a taxpayer’s constraints on ability to do- Arkansas, v. 97, 104, nate to an STO his choice. a Should (1968), taxpayer STO, L.Ed.2d cannot violate elect direct funds to an Clause, I dis- respectfully Establishment contribution refunded via tax cred- our full deni- regrettable sent from court’s up its of for individual taxpayers $500 rehearing al en banc. up couples filing married $1000 jointly.3 Id. only I Winn dissent because cannot squared Supreme be with the man- these provide Court’s STOs use funds to schol- pan- arships grants date also because tuition at- to students holding pall comparable el’s casts a over within tending § the state. 43- 220.187; § money paid 1. See Fla. Stat. Ann. govern- Ga.Code to the 48-7-29.16; 6-3.1-30.5; ment, § § going Ind.Code Iowa with the amount of the reduction 1S; § designated Code 422.1 24 Pa. Stat. 20-2005- only Ann. practical STO. The B; 44-62-2; § Gen. R.I. Laws A.B. taxpay- difference is with a deduction the Sess., (Ca.2009); Leg., Reg. own, § 2009-10 S.B. co-payment er must make of his Sess., l(3)(b)-(c) (Mont. Leg., Reg. § 61st copayment. a credit whereas with there is no Sess., 2009); 6(1) Leg., § S.B. Reg. course, 75th Of favors over taxpayers richer (Nev.2009); Reg. Leg., ones, H.B. 75th Sess. poorer as the former are more able (Or.2009). Moreover, personal afford a contribution. progressive system, tax fa- deductions most operated greatest have Such without inci- vor the with the income. dent, thought perhaps because no one has Not does the value of the deduction rate, challenge e.g., post Cf., them taxpayer's marginal -Zelman. Bush v. increase with Holmes, (Fla.2006) (ex- 919 So.2d but so does amount of reve- plaintiffs plaining voluntarily dismissed a taxpayer’s nue diverted at that is behest. challenge ato Florida why school choice regressive It is to see difficult such Zelman). (deductions) after regime superi- constitutionally egalitarian or to the tax credit. Lochner Cf. York, 45, 75, The distinction the draw be- New tries to deduction, L, (Holmes, (The (1905) dissenting) tax tween a credit and a see 562 L.Ed. 937 F.3d at can have constitutional "does not enact no Constitution Mr. Herbert statics.”). significance. Spencer's Both result in reduction social only to scholarships available make their essentially any private 1089(G). While religiously affili- willing to attend students to receive statutorily eligible Winn, at 1006. F.3d ated schools. monies,4 may choose STOs scholarship limit majority of do not so the STOs While support, so they will institutions which maintain that scholarships,6 plaintiffs their than funds to more they provide as long Id,.5 overwhelming that do receive those then decide Parents one school. contributions. See majority like their they would private school which they assert Consequently, id. scholarships attend, for apply child to money is di- scholarship pool of available STOs. appropriate from wishing to send their minished stops involvement sum, state’s Plain- schools. See id. children to secular creation of STOs authorizing means Sec- disparity that this tiffs contend that, After available. tax credits making favors applied, impermissibly as tion hands off the takes its government nonreligion. See id. religion over Any- create an STO. Anyone can wheel. agreed and re- three-judge panel receive any STO and can contribute one dismissal, hold- the district court’s versed apply can Anyone tax benefits. identical are ac- plaintiffs’ allegations “if ing that by any STO. scholarship offered any true, violates the Section 1089 cepted enactment, 1089’s Shortly after Section at 1013. See id. Establishment Clause.” that the Court held Supreme the Arizona tax cred- that the nature of the Concluding face, violate the statute, did not on its tantamount taxpayer contributions it made Kotterman v. Establishment Clause. funds, found that (1999). Killian, 972 P.2d 606 193 Ariz. violated both the potentially Section this fed- brought then Taxpayer plaintiffs prongs of Lemon v. purpose and effects action, by the was dismissed eral which Kurtzman, 602, 603, 91 S.Ct. Injunction Tax court under the district (1971). See id. at Killian, F.3d v. Act. See Winn The fact that directed (9th Cir.2002). was After the suit majority available funds to 1020; reinstated, also Hibbs id. at see see reasoned, schools, par- deprived v. independent pri- “genuinely ents of a (2004) opinion (affirming our L.Ed.2d 172 their children to to send choice[]” vate dismissal), the district court reversing its (inter- at 1013 private schools. Id. action, time on again dismissed citation quotation nal marks and grounds, see Winn federal constitutional 1089 was not “neu- Accordingly, Section (D.Ariz.2005). Hibbs, F.Supp.2d 1117 choice and rea- program private tral (and ... conclude observer could They allege no sonable appealed. Plaintiffs ... car- reaching religious aid some STOs practice, that in disputes) one schemes, says supra the statute see note the basis of 4. that "discriminate on Schools color, race, handicap, or na- status "to attend familial should allow children STOs § origin” ineligible. Id. 43- parents' tional choice.” qualified school of their 1089(G)(2). clarity, this lan- hardly While the model interpreted to mean STOs guage has been system, virtually every tax other credit Like scholarships satisfy by providing the statute requires supra Arizona statute see note two schools. at least limit- provide "without STOs to ing availability of one students existing fifty-five STOs Twenty-five of the § 43- Ann. school.” Ariz.Rev.Stat. scholarship 1089(G)(3). awards to again, other limit And like most imprimatur it of government program private choice, ries with “neutral of where (internal at endorsement.” Id. 1013-14 state aid religious reaches solely omitted).7 quotation marks and citation a result of the numerous independent deci- sions of individuals” does not vio- II late the Establishment Clause. Id. at I pick have no bone to with the manner S.Ct. panel

in which the frames the consti- basic It is in the application of these stan inquiry. tutional We all understand that dards, however, that the three-judge panel “prevents Establishment Clause so, lost the forest for the In doing trees. enacting from State laws that have the it reached a result that simply cannot be ‘purpose’ advancing or ‘effect’of or inhibit- reconciled with Zelmanf.8 ing religion.” 648-49, 536 U.S. at not, 2460. More than often Court determines whether these com- III by asking mands have been violated panel The is correct that a law observer,” whether “reasonable who is have the “forbidden ‘effect’ of advancing history “aware of the underly- context ... religion.” Id. at 122 S.Ct. 2460. ing challenged program,” would conclude the panel neglect, however, What seems to religion. the state has “endorsed” is that a law to have “[f]or forbidden ‘ef (internal quotation S.Ct. 2460 Lemon, fects’ under it say must be fair to marks and citation has advanced itself panel’s heavy emphasis on Zelman religion through its own activities in case, is also warranted. In that the Su- fluence.” Corp. Presiding Bishop of preme upheld Court an Ohio school vouch- Church Jesus Christ Latter-Day program provided er tuition aid to Amos, 327, 337, Saints v. Cleveland families on the basis need. Id. (1987). 644-45, 122 S.Ct. 2460. The vouchers I directly were distributed must confess that I am at parents, who a loss to scholarship money could choose to use the understand how a reasonable observer— any participating private, community, fully one informed about all matters relat- magnet, school. ed to the conclude that —could 122 S.Ct. 2460. The Court ruled that a “government has endorsed reli- itself” procedural pos- 7. Make no mistake about the example, panel 9. For asserts that Arizona True, ture of this decision. the case will be parents presented awith choice that "de- remanded to the district court. But the liberately skew[s] incentives toward that, plaintiffs’ allegations holds "if are ac- Winn, schools.” See (quot- 562 F.3d at 1013 true, cepted as Section 1089 violates the Es- 2460). ing 536 U.S. at tablishment Clause.” 562 F.3d at Zelman, however, quotation The actual from tell, disputes 1013. So far as I can no one key qualifier: only includes a it condemns plaintiffs’ allegations factual about how the deliberately where “the State Thus, program operates practice. pan- skewed incentives toward schools.” el leaves district court with no choice 122 S.Ct. 2460 to declare the unconstitutional as added). Since state action can violate applied, rendering the remand little more Clause, the Establishment omis- empty formality. than an telling. sion is "effects,” primarily 8. As the focused "purpose,” rather than I address two these prongs Lemon out of order. justified accusing govern- Multiple layers pri- be case.

gion in this vate, separate choice the state ment of their children of school depriving individual entanglement: any from funds? Of course not. is at least times “government four itself” example plainly shows foregoing organi- aid to from

removed case, any that “endorsement” of this First, group an individual or zations. religion arising from the disbursement of to an must choose create STO. individuals religious entities turns whol- state funds to to Second, must then decide that STO ly independent, un- completely and on religious provide scholarships schools. private coerced individuals. The choices of Third, have to taxpayers contribute just easily system created could as Arizona Finally, parents need to in question. STO dearth of funding have resulted in a total scholarship for their student. apply for a religious organizations opposed as every level, In and at these every respect available. feast allegedly surfeit This choices, not purely private government utterly out of or famine is the state’s circumstances, “gov- such policy. Under be, panel hands. cannot simply It cannot, easily, at least ernment cannot claims, “scholarship program ... that the might that to a grant favors lead special religious skews aid in favor of schools.” Zelman, 536 religious establishment.” added). at 1013 (internal F.3d 652-53, 122 S.Ct. U.S. at omitted). thing: any The does no such “program” and citation quotation marks “skewing]” place takes that occurs be- Only passing through piled choice after upon government government reach cause of action. private, choice do funds religious organizations. gov- That It action is not is axiomatic that such cannot that government ernment endorsement: violate Clause. the Establishment nonchalance.10 my point, To fol- illustrate consider the A

lowing hypothetical. Assume the exact panel however, The believes that under statutory embodied in scheme Section system, this choice is the cul- multi-tiered STO, anyone anyone 1089: can create all, prit, not After plaintiffs the savior. STO, can to an can limit donate STOs allege delegated that it is “the choice scholarships particular their types taxpayers” dispropor- which “channels imagine only agnostics Now that schools. tionate government amount of aid to sec- decide create STOs. further Imagine tarian limit their scholarships STOs [that] every provide that refuses to tuition STO Id. religious to use schools.” short, religious assistance to maintains, panel focused on parental absolutely no money assume there is avail- Here, however, choice. that able want to Id. at 1018. who send their choice is purported impermissibly children to a school. to be Would language panel rallying into makes much of the that turns this fact flowing "directly” aid cry by filtering through discussed suggest Zelman that aid parents. Supreme that the Court I submit multiple choice—rather than levels First, terminology used for two such reasons. single religion. endorses level—the state the case before the it had no was Court: But that makes no sense. How can increas- systems pontificate involving ad- reason to ing separation between state and Second, choice. ditional levels heightened result endorse- language emphasized pro- voucher ment? gram constitutionally proble- involve did not aid to institutions. matic "direct” the decisions of ing). fifty-six “constrained” Of the private schools that words, participated In other in the and STOs. Id. Cleveland voucher noted, gram, forty-six he were deprive parents religious. the choices of others mind, Id. In his lack of “independent array their “wide own (internal of private nonreligious options” suggested quotation choice[].” genuine. “choice” was not See id. They might marks citation Rather, 122 S.Ct. 2460. he their children to secular pri- want to send parents’ believed process decisionmaking schools, vate are not was skewed “the fact that too few non- readily purpose. available for More- religious school desks are available and over, alleged claims the abun- few but schools can afford to dance of funds from STOs creates accept more than a handful of voucher parents incentive for these to enroll 707, students.” Id. at 122 S.Ct. 2460. “For in religious their children schools. Id. at overwhelming the number of children in 1017-18. The therefore holds that scheme,” concluded, the voucher he “the provide genuine Section 1089 “fails to op- only public alternative to the schools is portunities for ... to select secu- religious.” swayed Id. He was not by the lar options school-age educational for their fact that these constraints were unrelated (internal children.” at quotation Id. 1018 to state action: “a Hobson’s choice is not a marks and citation choice, whatever the reason for being Hob- I admit that the conclusion with sum, sonian.” Id. In Justice Souter would respect purported to the lack of parental have struck down pro- the Ohio voucher choice in support finds Zelman. The gram parents’ because choice was influ- is, problem support comes from Jus- by enced beyond factors their control. dissent, tice opinion Souter’s not the of the Obviously, position Justice Souter’s did aspects majority’s Court. Several carry day. the “That 46 of the 56 in reasoning that case make the Winn private schools participating now the panel’s conclusion infirm. schools,” religious majori- the ty explained, “does not condemn it as a 1 violation of the Establishment Clause.” By generally focusing scope on the Id. at (majority opin- S.Ct. 2460 choice, parental panel, the Winn like the ion). thing, For one the Court noted that dissent, barking up Zelman wrong the imbalance was not a gov- function of question tree. The is not whether a par- ernment action. See id. at ent’s choice is somehow limited or con- Moreover, S.Ct. 2460. attribute con- “[t]o strained, question is whether stitutional significance” availability to the government has somehow limited or con- options, of secular “would lead to the ab- strained choice. surd result that a neutral school-choice In Justice Souter accused the program might permissible be in ... some majority allowing external factors high states [with concentration of secular in a way schools], “influencie] choices that aims the not in other States [where money religious in a direction.” 536 plentiful].” schools are Id. at (Souter, J., S.Ct. 2460 dissent- 122 S.Ct. 2460.11 To avoid this ab- Earlier, I listed several state could schemes be constitutional if secular, jeopardized by panel's holding. supra provide decided to more funds to panel’s reasoning, note Under those than rather STOs. An identical money spend. con a limited majority held that amount of

surdity, “[t]he scenario, aid a neutral educational stitutionality of either as Justice Souter Under bemoaned, does not turn on whether simply overwhelming num- “[f]or area, particu at a why, particular children in [program], ber of time,12 are run most schools lar schools is reli- public alternative recipients most organizations, or (Souter, Id. at gious.” the aid school.” to use choose J., dissenting). 2460.13

Id. at In go I can on. voucher funds meaningful between no distinction I see participating could be used at and the facts of Zelman the situation adjacent districts to Cleveland. alleged “con- Both cases involve this case. (majority opin- S.Ct. 2460 to a secular re- on access scarce straints” ion). However, no school “elected to such “nonreligious [private] source— Id. participate.” S.Ct. 2460. Zelman, only partic- ten of the desks.” Parental choice therefore “con- was schools were secular. ipating strained” decisions of out-of-district “con- 2460. Parents were thus Similarly, public school administrators. to fund by third-party decisions strained” not require private Ohio did secular rather schools. religious, than secular accept they chose schools to vouchers: to Here, thirty fifty-five while out of STOs do See id. 656 n. S.Ct. 2460. so. schools, to scholarships offer secular for inde- Citing overcrowding or a desire majority program allegedly funds are funds, pendence government from these Parents concentrated STOs. just easily could have decided are thus “constrained” the decisions Alternatively, opt program. out to limit some STOs their have, reason, de- they could for whatever institutions, choices scenario, up shop. to close In either cided to direct their funds to those STOs. The parents again would left with a be reduced key point is that neither Zelman nor private, “choice” to send their children purported case at hand are the “con- secular Did the Zelman Court government-induced. There is straints” imper- down the program strike Ohio simply constitutionally significant no dis- missibly system “delegating” such decisions to tinction between where—for rea- parental money unattributable to school administrators? Was sons state action— available, unduly but there a limited number choice held be “constrained”? it, system Instead, not. of schools to receive and a Of course the Court said available, availability there where schools be that of a secular might gram explain be went then constitutional in one state 13. The Court on to that it is unconstitutional in another. constitutionality” ... "irrelevant government program majority aid that "a vast particular 12. The "at a time” reference is benefits went above, especially significant. As discussed Zelman, 536 U.S. at 122 S.Ct. schools.” nothing precludes in Section 1089 Ari- point, distinguishes tomorrow, taxpayer, suddenly de- zona from claiming involve that Zelman did not ciding exclusively to fund STOs. See parental situation where choice was "con- pp. supra Supreme 652-53. has Court at 1017 n. 14. strained.” 562 F.3d As twice declined to strike down laws on the Zelman, below, simply targets. moving basis of such See demonstrated 2460; U.S. at Mueller pp. case. See infra Allen, S.Ct. (1983). L.Ed.2d 721 education, area, “in at a particular partic time,” to the constitu

ular was irrelevant rejecting Justice position, Souter’s Zelman, inquiry. 536 U.S. at tional majority the Zelman emphasized also 656-60, 122 2460; supra pp. 663-64.14 he asking wrong question. was Rath- Ultimately, seems to assume er than focusing narrowly on the chal- have the same access to must lenged program, voucher majority ex- “nonreligious [private] school desks” as plained that the “Establishment Clause they religious private do to school desks. question coercing par- is whether Ohio is certainly But was not the case sending ents into their children to and the Ohio voucher schools, question and that an- must be Indeed, upheld. was such result is unat by evaluating options swered all Ohio in any program govern tainable where the schoolchildren, vides Cleveland one of respect ment is neutral with which is to obtain Id. at 655- nonreligion. a[voucher].” If the takes constitutionally 56, 122 required ap hands-off S.Ct. 2460. Because the Winn external factors "will define the proach, panel adopts overly Justice Souter’s re- playing Contrary field. con approach, strictive rather than assessing clusion, inquiry “simply the constitutional students, options” “all available to Arizona does not turn” on whatever influence these similarly its result is flawed.16 might parents. factors exert on Indeed, panel overtly pa- limited its rental-choice inquiry range to “the of edu- Again, provided there is “no evidence cational choices the STO-administered deliberately that the State incen- skewed scholarship programs offer.” 562 schools,” tives toward there is no “rejected] F.3d at It suggestion 1018. the Establishment Clause violation. Id. at the mere existence of public the 650, added); 122 S.Ct. 2460 see system school guarantees any scholar- supra pp. 661-62. As the tax Arizona ship program provides genuine private for program just credit is as much a program choice.” Id. While latter statement of “true choice” as the in true, Zelman, something be it is also of a non 2460, at S.Ct. sequitur. in No one claims the existence of reinstating erred the constitu- a challenge.15 tional public system grants a state license consequence 14. The Zelman Court's comment supra of decisions. See "preponderance religiously pri- affiliated pp. 661-62. certainly vate schools did not arise as a result program" [voucher] is also instructive. reason, panel's For this the Winn reliance 15. 656-57, at 536 U.S. 122 S.Ct. 2460. The on Committee Public Education & Reli- phe- Court stated that the imbalance was "a gious Liberty Nyquist, 413 U.S. many nomenon common to American cities.” (1973), S.Ct. is mis- words, 122 S.Ct. 2460. In other Zelman, 661-62, placed. See at disparity by government was caused not S.Ct. 2460. action, by private predilections. but rather The same can be said about the existence of Interestingly, Supreme Court decided religiously dispropor- affiliated and STOs options” “gov- to italicize “all in and they tionate share of contributions Maybe justices ernment in Amos. receive. The concentration of funds reli- in itself” thought requirements important. these were gious resulting entities—and the "constraint” 655-56, 2460; 536 U.S. at 122 S.Ct. parental "certainly did not arise choice— action, Amos, aas result of” state but rather as a 483 U.S. at 107 S.Ct. 2862. Indeed, 15-745, §§ Sec- ed. Id. Clause. the Establishment ignore instructs, yet whether another parents tion 1089 itself offers as Zelman question, sending into “coercing parents own they Arizona is can create their alternative: schools,” ques- a their children use at secu- and solicit donations for STO by evaluating answered tion which must be alternative ed- lar schools. These provides Arizona its school- options” “all opportunities mirror those ucational children. in took into consideration Zelman. Court See 536 U.S. (“Cleveland enjoy a range schoolchildren in engage not even did so, They may remain it it would have of educational choices: inquiry. Had done before, one of public public that Section 1089 is but school as remain discovered aid, choices” available “range tutoring of educational publicly school with funded school-aged children. Id. parents scholarship and choose a obtain 2460; Kotterman, see also school, scholarship and choose a obtain “Arizona (noting at 611 that the 972 P.2d school, enroll in a nonreligious private has, years, expanded Legislature recent school, community magnet in a or enroll public education” options available school.”).18 options). Ari- listing and some of those Far from This is no Hobson’s choice. provide schools must public zona’s “coercing” parents sending into their chil- enrollment, allowing parents to send open schools, Arizona provides dren to tuition-free, children, their to schools variety of secular alternatives. wide § Ann. 15- their choice. Ariz.Rev.Stat. objective familiar with the “Any observer 816.01(A). Tax credits are available for history full context of 1089] [Section schools for “extracur- donations reasonably aspect would view it as one of a ricular activities or character education.” undertaking....” broader Id. § Ann. 43-1089.01. An ex- Ariz.Rev.Stat. By shutting eyes its S.Ct. 2460. system “pro- charter schools tensive options par- to Arizona host of available academic choices for additional vide[s] ents, panel’s opinion directly § conflicts pupils.” 15-181.17 Homeschooling permitted protect- with Zelman.19 4,000 plus copay portion schools school ... must 17. Out of charters country, tuition. Families that choose a com- across the 478 are in Arizona. See school's Association, school, school, magnet http:// munity or traditional Arizona Charter Schools nothing. clearly www.azcharters.org/pages/schools-basic- pay dis- [This] school 25, 2009). (last July pells] visited the claim that the creates fi- statistics parents nancial incentives for to choose a observed, marks, (internal parents quotation 18. As the district court sectarian school.” alterations, omitted)). actually discouraged sending from their chil- and citation private dren schools. “An Ari- argues reading any public 19. The concurrence that this zona student attend school contrast, Nyquist. average Zelman Con- without cost.... is inconsistent $1,222, scholarship paid STOs in 2003 was currence at 654-55. The Court invalidated Nyquist unlikely York tax at issue in a sum to cover all of the costs of the New Winn, were de- private attendance.” 361 because its tuition reimbursements " (citations signed 'explicitly ... an incentive to F.Supp.2d and footnote to offer 1121 654, Zelman, omitted); U.S. at to send their children sectarian see also 536 ” 662, Zelman, (“Families 536 U.S. at 122 122 S.Ct. 2460 ... have a financial schools.’ private religious (quoting Nyquist, 413 U.S. at 782- choose a S.Ct. 2460 disincentive to 2955). explained that S.Ct. As I have school over other schools. Parents 93 above, plethora private of choices available to choose to ... enroll their children in

B emment from endorsing religion— itself’’ is not offended. by the ar- foregoing As demonstrated I further submit that under the guments, program provides the Arizona endorse- test, ment any level of “true choice.” That attenuation between parents with established, government action and aid to nec- discussion tax- essarily reduces the payer surplusage. choice becomes In- likelihood that a “rea- deed, sonable observer” will impermissible find “taxpayer is its curious focus on government approbation. I There can apt analogy suggest choice” at all? be no doubt that taxpayer choice Winn’s reliance Larkin v. Gren- contributes to Den, Inc., Thus, attenuation. the panel’s analy- del’s 103 S.Ct. (1982), sis of whether utterly choice Section mis- “ provides taxpayers taken. ensures that ‘the circuit government between and religion panel’s reasoning thrust of the ” Winn, was point. broken’ is beside the that taxpayer choice is not a valid substi- at 1021 (quoting F.3d parental allegedly tute choice 2460). The self- certain, the core I of Zelman. am not evident fact is that “delegating” the however, that parental choice was as cen- choice to taxpayers, government al- reasoning tral of Zelman as the ready broke the circuit. panel it. opinion would have While repeatedly Nonetheless, does refer to aid “recipients,” contends rea- see 562 F.3d at (listing cita- sonable observer would consider two fac- tions), times, only at other it refers to tors deciding when whether a program of choice, see, private, nongovernmental e.g., individual choice violates the Establish- 536 U.S. at S.Ct. 2460 ment Clause: the person “role the making (describing programs “government where occupies choice the structure of the aid reaches schools a program,” id. and “whether the genuine result of the independent choice ... delegated has effect individuals”); choices of id. at moting, hindering, the program’s secu- (stating that “no lar purpose,” reasonable id. at 1021. Regarding the former, observer” would find endorse- determined there was ” ment where “state aid reaches “no guaranteeing’ ‘effective means of “ solely as a result of the numerous would exercise their choice ‘ex- independent secular, decisions of clusively neutral, individu- and nonideo- als”). Significantly, logical Zelman seems purposes.’” most Id. at 1020 (quoting Larkin, 505). concerned about preventing the state from 459 U.S. at reaching “grant special Parents, out to hand, favors that on the other have “incen- might lead to a establishment.” tives to apply program’s the aid based on 652-53, (internal quo- S.Ct. 2460 their children’s educational interests in- tation marks and citation So stead of on sectarian considerations.” Id. long as independent latter, “favors” doled out at 1021. As for the the panel con- action, state Establishment cluded that thwarted the secular again, prohibits Clause—which “gov- purpose of the statute insofar as their parents Arizona demonstrates that Section schools over sectarian schools. incentivizing religious 1089 has no effect of Thus, educationally. whether it range narrowed the of avail- interests contributions parent, Id. at 1022. resides with the alternatives. able educational available, made the state once the choice is how a reasonable observ- One could see guaranteeing” no “effective means of has perceive government in Larkin could er “exclusively it will be exercised the “role the religion from endorsement of secular, neutral, nonideological pur- in the making played the choice” [entity] (internal poses.” Id. at 103 S.Ct. 505 obvious, stating Maybe I am scheme. omitted). By quotation marks and citation perception might large part engaging pseudo-psycho- with in contrast Larkin, that in the state on the fact rest motivation, Zel- logical inquires into under authority ability delegated legislative —the man, only satisfy we need ourselves liquor licenses'—to churches. See to veto choice, is, by it is made whatever I say 103 S.Ct. 505. actor, private by government. Under such circum- again: churches. ability to completely unsurprising respect taxpayers’ it is that a With stances purpose observer would conclude that “thwart” the secular stat- reasonable ute, above, “joint legislative authority any pro- exercise of as discussed actors of true choice will have this by provides significant gram and State Church In Zel- symbolic religion ability. supra pp. benefit to the minds of See man, example, purpose provid- some.” Id. at 103 S.Ct. 505. To organization ing range opportu- sectarian a broad of educational pervasively what “delegated” has Arizona the choice at issue nities was “thwarted” the decisions of taxpayer.20 neighboring public-school The Arizona administrators in this case? perceived supra endorsement of to decline vouchers. See When issue, cooperation pp. goal similarly state churches is 664-65. The could be with cry cooperation a far tax- if from state “thwarted” school admin- payers.21 istrators decided to out of the pull gram. supra pp. 664-65. An inherent Moreover, I disagree with the reality of true choice conclusion that are somehow less cannot condemn Section 1089. promote religious objectives motivated to taxpayers generally. anyone Ultimately, than As panel appears argue who grown up has in a household will it Arizona’s scheme is flawed because you, schooling essentially delegates private entity tell decisions are as fre- to a quently something made on the basis of the state could not constitution- they ally purely considerations as are on secu- achieve the exercise of its own least, here, grounds. very powers; promotion lar academic At the 1020; sectarian considerations factor into the education. See 562 F.3d equation (citing of what is in the id. at 1021 child’s best see also Norwood Larkin, Additionally, authority delegated support panel’s analysis. legis- In power Larkin was veto absolute area of authority delegated lative was to churches. government functioning. traditional Joel, Kiryas the state created a school dis- Here, 103 S.Ct. 505. each individual particular religious group trict such that a only taxpayer exercises modicum of control political would have control of the "exclusive scholarship over the allocation of funds. 698-99, subdivision.” 512 U.S. at 114 S.Ct. displayed 2481. Both actions overt Kiryas Village 21. Board Education Joel "Delegation” taxpayer Grumet, 687, bias. to the Arizona v. School District 512 U.S. 2481, (1994), does not. does Harrison, 455, 465, Winn, purpose 93 S.Ct. valid” is a sham. 562 F.3d (1973)). may L.Ed.2d 723 That well be at 1011-12. true, as the own citation indi From its citation McCreary County case, cates, for that to be the the state ACLU, 125 S.Ct. “induce, encourage or pro must somehow (2005), L.Ed.2d 729 panel seems to private persons accomplish what it mote argue very that the enactment of Section accomplish.” constitutionally forbidden to “bespoke” purpose. wood, 413 U.S. at Nor Winn, 562 F.3d at 1012. But how can this added). (emphases At the risk of be McCreary say govern- so? does horse, I beating repeat a dead the ment action can “patently religious” be so nothing cajole par state here has done that its nonsecular nature is evident. 545 ents, STOs, or taxpayers supporting into U.S. at 125 S.Ct. 2722. examples The simply education. The state has however, provided, are situations where said, if you your donate to the STO of the state mandated Bible study, the teach- choice, you get a tax in credit. action Such creationism, ing of prayer induces, way promotes no encourages, Setting up 862-63. a tax credit private parties religion.22 to aid provide scholarships to chil- generally hardly dren of the same ilk.

IV panel To the extent the claims that the panel plaintiffs also holds that have manner which Section 1089 has been alleged suggesting facts Section 1089 was implemented reveals the stated secular not “enacted for ... pur- [a] valid secular sham, purpose to be a their arguments are (internal pose.” 562 F.3d at 1011 similarly First, unpersuasive. the Su- quotation marks and citation preme recognized Court has that a “legis- reaches despite this conclusion lature’s stated reasons generally get will conceding facially that the statute is neu- deference,” deference abandoned in respect tral with to religion. See id. at “those unusual cases where the claim was Nothing legislative history an apparent sham.” suggests that driving force behind the 2722. Nothing plaintiffs in the alle- anything bill was other than the desire to gations suggest this is one of those “un- provide “equal range access to a wide cases,” setting usual and as a tax up credit options schooling every for students of in- act, is not a Id.; Mueller, “patently religious” come level.” see also (“A nothing there is “apparent” any pur- about U.S. at 103 S.Ct. 3062 state’s ported Second, implementation sham. defray decision to the cost of educational inquiry centers on expenses actions taken regardless incurred — government. type See id. 125 S.Ct. 2722 schools their children at- purpose (stating inquiry tend —evidences a that the turns is both on the “tra- understandable.”). secular signs Nonethe- ditional external inup show less, text, plaintiffs legislative history, maintains that implementa- statute, could based on prove, how Section 1089 tion of the or comparable official act”) (internal operates practice, that this “secular and quotation marks and cita- 22. The concurrence asserts that effect permits "[t]he to see how Section 1089-—-which tax gifts of these choices ... be to harm deductions for to both and sec- ability aspiring scholarship recipients scholarship ular funds—harms a student's scholarship ability to obtain a scholarship available for use to obtain a ato secular school." Concurrence at I fail school. omitted); at V id.

tions newly government’s (questioning layer layer of choice upon it a Ten after altered proffered purposes into this ensures that “the built attempt in an display Commandments religion government circuit between pur- stated sectarian mitigate previously broken.” 536 U.S. at [is] Here, alleged impropriety poses). not ac- taxpayer, Try may, from 2460. as it can- arises Third, holding turns on tion. Ultimately, circuit. complete not such practice that “in STOs plaintiffs allegation opinion grapples with nothing of their permitted to restrict the use nothing the fact that Arizona does to en- religious to use at certain scholarships courage, promote, or otherwise to incen- at 1012. But 562 F.3d schools.” tivize actors to direct aid reli- apparent from the statute result gious Nothing explains how “the itself, long as which is satisfied so STOs government religion has advanced itself scholarships to two or more provide through its own activities and influence.” schools, plaintiffs note a fact supra see Amos, at U.S. S.Ct. 2862. recognize complaint. in them themselves Nothing points “evidence that the may independently decide to That an STO deliberately State skewed incentives to- limit does not make reli- its religious ward schools.” gious purpose “apparent.”23 added). at S.Ct. 2460 panel’s pur- Ultimately, the crux Nothing shows how Section 1089 enables pose holding previously turns on matters “grant special Arizona to that might favors prong: discussed under the effects a non- at lead to establishment.” Id. purpose could be inferred from the (internal 652-53, 122 quotation that, moment, given fact at a the bulk of marks citation scholarship money is available for use schools. But as detailed three-judge panel hardly But the can be above, money institutions flows faulted for these omissions: it cannot man- entirely nongovernmental at the whim of ufacture what does not exist.24 What does legislature actors: STOs. system a tax exist is credit relies hardly “purpose” could have had the entirely choice. Individuals endorsing up plan when it set choose to create an STO. STOs choose to that, knew, for all it could have resulted limit their funds to certain schools. Tax- absolutely funding no entities. payers choose donate. Parents choose supra pp. moving target See 661-62. This truth, apply scholarships. every- is irrelevant to the Establishment Clause inquiry. supra everyone See one Arizona has a ex- pp. choice— (“No Additionally, any purpose magician Copperfield, inquiry 23. into David —not McCreary, must look context. See Harry produce even Houdini—can a rabbit 862, 864, 866, 125 S.Ct. 2722. As dis- a hat the rabbit is in the hat to from unless above, was enacted cussed Section 1089 Moreover, begin with. if a hat does not con- amidst a broader effort to increase alternative animal, magician cannot tain such an claim opportunities. supra pp. educational anything produce he is able to from it is 664-66; Kotterman, see also 972 P.2d rabbit, in fact a no matter how sincere he great be or how his forensic skills. All of Compassion Washington, Dying Cf. J., something phys- (9th Cir.1996) (Trott, this has to do basic F.3d 1446-47 banc) ics.”). dissenting rehearing from denial en 1, individual; Doe # an John Doe No reasonable ob- John government. cept individual; Marriage think # lengthy chain of an Protect would server Washington, Plaintiffs-Appellees, has en- suggests choice religion. dorsed v. panel’s decision three-judge Because the Washington Standing Families strays Supreme from established Court Together, Intervenor- jeopardizes and because it precedent, Appellant, opportunities of thousands of educational enjoy the benefits of Section children who Reed, capacity Sam his official as across the na- 1089 and related Secretary Washington; State tion, from our respectfully I must dissent Galarza, capaci Brenda her official rehear this regrettable court’s failure to ty as Public records Officer for the case en banc. Secretary Washington, of State of De

fendants. 09-35818, 09-35826,

Nos. Appeals, United States Court of Ninth Circuit. individual; # an Doe DOE John John Argued and Submitted Oct. individual; Marriage # an Protect Plaintiffs-Appellees, Washington, Filed Oct.

v. REED, capacity in his official as

Sam

Secretary Washington; of State of Galarza, capaci

Brenda in her official

ty as Public records Officer for the

Secretary Washington, De of State of

fendants-Appellants. individual;

John Doe # an John Doe individual; Marriage

# Protect

Washington, Plaintiffs-Appellees, Reed, capacity in his official

Sam

Secretary Washington; of State of Galarza, capaci

Brenda in her official

ty as Public records Officer for the

Secretary Washington, De of State of

fendants, Open

Washington Coalition for

Government, Defendant-

intervenor-Appellant.

Case Details

Case Name: Winn v. Arizona Christian School Tuition Organization

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 21, 2009

Citation: 586 F.3d 649

Docket Number: 05-15754

Court Abbreviation: 9th Cir.