By HOPPY KERCHEVAL

MORGANTOWN -- School choice advocates won a significant victory recently in the U.S. Supreme Court.

In Arizona Christian School Tuition Organization v. Winn et al, the high court, in a 5-4 decision, refused to take up a challenge to Arizona's private school tuition tax credits.

A program in that state allows taxpayers to contribute to school tuition organizations (STOs), which then awards scholarships to students to attend private (and in some cases religious) schools. The law allows contributors to deduct up to $1,000 from their state taxes.

Arizona taxpayers have used the credit to contribute $350 million to the STOs since 1997. Several taxpayers challenged the credit, contending it violated the separation of church and state because the credits were tantamount to government dollars supporting religious activity.

The high court's decision was based more on a technical aspect; the court ruled that those trying to stop the program did not have standing; that is, they could not show that they were harmed by the tax credit program.

Still, the language in the opinion, authored by Justice Anthony Kennedy, provides affirmation for school choice supporters and reinforces private property concepts.

Kennedy reasoned that a tax credit for a contribution cannot violate church-state separation because the money spent doesn't belong to the government.

"When Arizona taxpayers choose to contribute to STOs, they spend their own money," Kennedy wrote, "not money the State has collected from respondents or other taxpayers."

As such, using the tax credit system is a private action. "Objecting taxpayers know that their fellow citizens, not the State, decide to contribute and, in fact, make the contribution," wrote the Justice.

In her dissent, Justice Elena Kagan argued that the credit is simply a form of subsidy of religious activity and therefore subject to the Constitutional question. At the very least, Kagan argued, the citizens objecting to the credit had a legitimate reason to get into court.

"Taxpayers experience the same injury for standing purposes whether government subsidization of religion takes the form of a cash grant or a tax measure," the Justice wrote.

But the question remains, whose money is it?

Kennedy likened the credit to a tax benefit that taxpayers receive for contributions to charitable organizations. The money that is contributed, whether to the STOs or any charity, passes directly to the entity and bypasses the government.

In short, personal income is the property of the person, not the State. The use of it, even if it produces a tax credit, is a private act, not a government function.

Kercheval is host of TalkLine, broadcast by the MetroNews Statewide Radio Network from 10 a.m. to noon Monday through Friday.

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