Standing and the Establishment Clause in the Wake of Arizona Christian School Tuition Organization v. Winn: Who is the Proper Plaintiff to Take a Stand in Tax Credit School Cases?

82 Miss. L.J. Supra 239 (2013)

37 Pages Posted: 19 Mar 2013

See all articles by Kristen Kyle-Castelli

Kristen Kyle-Castelli

University of Mississippi - School of Law

Date Written: 2013

Abstract

In Arizona Christian School Tuition Organization v. Winn, the Court once again sidestepped the substantive Establishment Clause issue by determining the plaintiffs did not have standing. Plaintiffs challenged Arizona Rev. Statute § 43-1089, a complex statutory scheme where taxpayers can receive a dollar-for-dollar tax credit for donations made to Student Tuition Organizations (STOs). The STOs then funnel the money to the parents, the intended beneficiaries, who are seeking private schooling options for their children. The statute, however, allows the STOs to discriminate on religious grounds severely curtailing the genuine choice by parents.

The ramifications of the ACSTO decision are wide-ranging. The Court redefined the injury necessary to the continued vitality of the Flast v. Cohen exception and created new distinctions between tax credits and appropriations. In effect, the Court restricted Flast to the point of extinction.

While the Flast exception is no longer a viable option to challenge the constitutionality of Section 1089, Arizona’s program warrants federal judicial review. The intended beneficiaries of Section 1089 may be able to establish standing under Texas Monthly v. Bullock due to the underinclusive effect of the program. In the wake of ACSTO, it is imperative a plaintiff is found to challenge Section 1089’s constitutionality.

The majority justified its decision to deny standing because of the need to retain legitimacy in the federal court system. However, if Justice Kagan is correct that the Court created a roadmap allowing legislatures to circumvent the Establishment Clause and the decision subsequently bars plaintiffs suffering violations of their individualized rights, the Court’s legitimacy and the protections secured by the Establishment Clause will be undermined.

Keywords: Establishment Clause, Standing, Arizona Christian School Tuition Organization, ACSTO, Flast, Texas Monthly, school voucher

Suggested Citation

Kyle-Castelli, Kristen, Standing and the Establishment Clause in the Wake of Arizona Christian School Tuition Organization v. Winn: Who is the Proper Plaintiff to Take a Stand in Tax Credit School Cases? (2013). 82 Miss. L.J. Supra 239 (2013), Available at SSRN: https://ssrn.com/abstract=2235640

Kristen Kyle-Castelli (Contact Author)

University of Mississippi - School of Law ( email )

Lamar Law Center
P.O. Box 1848
University, MS 38677
United States

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