It was a tough day at the Georgia Supreme Court for a challenge to a private school tuition tax credit program.
William K. Whitner of Paul Hastings, arguing for a group of taxpayers alleging a diversion of public funds for private use, had to take on attorneys for the state of Georgia, an intervenor arguing against him and four other groups filing amicus briefs. Then there was Justice David Nahmias, who rained down his usual questions and added some of his own answers.
“This is a dollar-for-dollar tax credit,” Whitner said of the program he is challenging on behalf of a group of taxpayers led by Raymond Gaddy. “It violates the Georgia Constitution on many levels,” Whitner said, starting with the alleged diversion of public funds to support religious schools.
“Read the whole language of it,” Nahmias interrupted, referring to the statute that Whitner contended was violated by the program to provide scholarships to students attending private and religious schools. Nahmias went on to answer his own question, adding, “from the public treasury, directly or indirectly.”
“Do any of these dollars enter the public treasury?” Nahmias asked.
“Yes. They certainly do,” Whitner answered. He contended the money comes from the public treasury because it’s refunded from tax withholdings.
“That’s the fundamental problem here,” Nahmias said. “You’re saying the government owns all of my money unless they deign not to collect it.”
At one point after shooting down Whitner’s argument, Nahmias asked, “What else you got?”
Arguing for the state Department of Revenue, Senior Assistant Attorney General Alex Sponseller basically agreed with Nahmias on the private funds point. He also said that $58 million in tax credits for the school scholarship program is dwarfed by the $15 billion the state spends on public education. And he said the taxpayers have no standing to sue.
“None of the plaintiffs have been specially injured by this program—except claiming that they are taxpayers and they don’t like it,” Sponseller said.
Timothy Keller of Tempe, Arizona argued as an intervenor for the Institute of Justice, agreeing with the state that the program only involves private funds.
“The plaintiffs have asked this court to do something no court has ever done and that is strike down a scholarship program,” Keller said. He argued that the element of parental choice as to where to send children to school breaks any link between church and state.
A Fulton County court dismissed the lawsuit alleging the K-12 tax credit program is unconstitutional. The Beckett Fund, the Pacific Legal Foundation EdChoice and the Cato Institute filed briefs in support of the program, saying it uses only private funds.
Gerald Weber filed a brief supporting the taxpayers challenging the program on behalf of the ACLU, Americans United for Separation of Church and State, the Anti-Defamation League and others. The case is Gaddy v. Georgia Department of Revenue, No. S17A0177.