By Mary C. Tillotson | Watchdog.org
The Institute for Justice hopes to give families a voice in the fight against an effort to take down Alabama’s tax credit program that helps students escape failing schools.
“They’re the direct beneficiaries of school choice programs. That’s why it’s important to be involved in the litigation to defend their unique interest in providing educational opportunities for their kids,” said Bert Gall, a senior attorney at the institute.
Alabama’s schools have struggled, with only 25 percent of fourth graders proficient in math or reading, 24 percent of eighth graders proficient in reading, and 17 percent of eighth graders proficient in math in 2011.
The Alabama Accountability Act, enacted earlier this year, allows individuals and corporations to receive tax credits for donations to scholarship-granting organizations. Low-income students can receive those scholarships to attend nonpublic schools.
The act also allows parents to receive a tax credit for the tuition they pay at nonpublic schools if their children are assigned to a failing public school.
The Alabama Education Association, the state’s powerful teachers union, has filed three separate lawsuits against the program. The first two, which the state supreme court dismissed, complained that the law was not passed in accordance with the state’s Open Meetings Act.
The third alleges the state is directing public money to private schools, among other complaints.
The Southern Poverty Law Center filed a lawsuit in federal court pertaining to the “equal protection” clause of the 14th Amendment. Since some families live in areas where it’s hard to participate, the program is not equally available to everyone, their lawsuit alleges, according to IJ attorney Arif Panju.
SPLC did not return repeated calls for comment.
The Institute for Justice is intervening on behalf of Alabama parents in AEA’s third suit.
“We chose not to intervene in the SPLC [lawsuit] because we believe it’s not substantive in any way,” Gall said. “We believe the AEA legislation will fail under controlling precedent, and the AEA’s lawsuit is borderline frivolous. The SPLC’s lawsuit is just plain frivolous.”
AEA technology coordinator Katherine Robinson provided a statement to Watchdog.org attributed to spokeswoman Amy Marlow.
“The AEA is not surprised by the motion to intervene in our lawsuit challenging the Alabama Accountability Act,” the statement reads. “This is an orchestrated political maneuver that was shopped around to attorneys throughout Alabama and has finally been filed by attorneys from outside the state. It is not coincidental that the person filing the lawsuit, Danyal Jones, is a former staff member for Twinkle Cavanaugh.”
Robinson said AEA was not willing to answer follow-up questions, discuss the case, or say anything except what was in the statement.
IJ is representing Jones and two other parents who are sending their children to private schools under the act. Jones has served as a clerk for Twinkle Andress Cavanaugh, president of the Public Service Commission and a Republican, according to the Montgomery Advertiser. Jones has said the connection is coincidental.
The current AEA suit includes 10 complaints. Three involve procedural issues with how the law was passed, four involve the movement of tax dollars, and three concern issues of public money funding private or religious schools.
“The key thing is that the school choice program gives the parents their own independent choice, so the money doesn’t go to the private school itself but for the genuine and independent choice of the parents,” Panju said.
Gall compared this to receiving a Social Security check and donating some of the money to a church, which no one finds constitutionally problematic.
In a 1979 case, the Alabama Supreme Court upheld a program that gave tuition grants to the state’s students attending in-state colleges, including private and religious ones, though the program had been challenged based on the same religion question, according to IJ’s litigation backgrounder.
The court’s opinion in that case can be read here.
That case offers strong precedent for the current case, Panju said.
Contact Mary C. Tillotson at firstname.lastname@example.org.
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