Legal Commentary

Today (in a few minutes, actually) the Supreme Court will hear oral arguments in a school-choice and church-state related case out of Arizona, called Arizona Christian School Tuition Organization v. Winn.  (To learn more about the case, check out this helpful summary at SCOTUSBlog, and this argument preview by Lyle Denniston.)  I am happy to see that my friend and classmate, Neal Katyal, is arguing for the United States as amicus, and also delighted that the Department of Justice is supporting the constitutionality of the Arizona program at issue.  (Disclosure:  Jack Coons and I did a short amicus brief in the case, too, for the American Center for School Choice.)

There is a non-trivial chance that the Court will not reach the merits of the First Amendment challenge to Arizona's (very successful and entirely, in my view, sound-as-policy-matter) tuition-tax-credit program.  If they do, they should certainly uphold the program, and reverse the Ninth Circuit's misguided misinterpretation and misapplication of Zelman.  Programs like Arizona's are proving more successful, and more politically do-able (especially, I suppose, now), than "voucher" programs, and they are, I think, essential to education reform.  On the other hand, I'm not a big fan of Flast, and so a no-standing ruling would not be entirely unwelcome.   We'll see!