program that uses state tax revenues to achieve a state purpose of funding scholarships subsidizing tuitions payments at non public schools in arizona the money that is used in this program it's money paid for by all the taxpayers of arizona in the same way as all the taxpayers of ohio paid for the program  constitutional the the state here are unlike the state in selma which chose correctly to distribute the scholarships itself and did that on a nondiscriminatory basis to parents and then let the parents use the scholarships wherever they wanted to for some reason arizona has chosen to use private organizations to administer the program so that the funds here the awards of scholarships are made by the is going to go to catholic education lutheran education jewish education that's got to be up to the parents in arizona it's not up to the parents in arizona it's the small group of taxpayers about seventy thousand last year who pay at least one thousand dollars in deduction for that that would not be constitutional no that would be our money our money well would be our money vote it would be the state's money because there's less revenue coming into the church because of the charitable deduction deductions i can fund using in lieu of pain all my money to the state or the federal government i can get a charitable deduction if i give it to a qualified religious education charity so that the state gets less money from me and in that sense i have directly funded i could say goes to the jewish federation where education funds can be used to fund religious schools that's ok that's not an constitutional and i take it you're not arguing in this case that the constitutional flaw is giving taxpayers who lack to go for the credit and get a dollar for dollar credit which is more generous than a deduction i understand but are you arguing that that at that level the program is unconstitutional no not if the money were to go to organizations not if the money would go to the state which would then distribute the scholarships on an i don't really just basis what if it goes to s t o this that are the state requires to make fifty percent of its scholarships has to be at least fifty percent have to go to secular private schools so that essentially it's a fifty fifty allocation and studios can not on their own qualify if they're going to impose as a favor sectarian schools by greater than fifty percent a couple of things one thing is that there is a big difference between deductions and credits these are not charitable contributions by taxpayers you're not attacking the constitutionality oh i know that but my point is that the money in this program estate tax revenue to answer your question i'm like to duck unlike adoptions right when you have a winner first when we do think bush between one hundred percent credit for their own educational expenses because ellen says that if the parents make the decisions then it's constitutional in that in the context of zelman but here the parents don't make the decision about how much money is going to be spent asking for scholarships their free choices that's was on was talking about that's what the prior cases were talking about but there are two choices being made here and i'm just trying to make clear whether or not the fact that taxpayers make a choice as to what kind of s t o they allocate their tax credit dollars to whether there's that's at issue here now in response to judge taxpayers decide how much of the state's tax revenue is going to be spent on religious education tax payers decide that's what happens here by the taxpayers giving to religious as fios or non religious they're making the decision about how much tax revenue is going to be spent on religious education you can't do that no more than the state can do that the state is down and suppose the state has their own set up the voucher program and said ok we'll give ten million dollars to a sub office that gives permits religious organizations to be as theo's nothing necessarily wrong with that but you cannot let a grantee using government funds to serve a government purpose discriminate on the basis of religion in handing out those funds bob and kendrick in the supreme court makes that half salute clear you can do anything president bush's executive order setting up his faith based program says you can use religious organizations but they must give out the money on a completely nondiscriminatory class if you give money state gives money to invest you know that doesn't discriminate or is not limited to religious schools that would not be unconstitutional you know and if the scary gives money to an s d o that has some religious schools and some non religious schools if the u s you know does not discriminate as for example one of the intervenors here  to school choice trust does not discriminate if you think the zalman exception to the general rule that you can't find religious education applies here when there isn't the same kind of educational crisis a trust if we were to win this case on that ground would be permitted to operate but judge nelson it's true that in theory anybody can start up a nasty habit put yourself in the position of a parent you would like your child to go to and nonsectarian school you can't go to the catholic s p o in phoenix which is the largest of all you know you can't go to the arizona christian tuition organization because they only give you a scholarship to do it so you go to the arizona school choice trust which is a nasty or set up without religious discrimination they have a waiting list of it least eight hundred people you'll be put on that waiting list you call up the catholic asio and they say hey i can't get a scholarship from arizona school choice trust but i get to go to school that my choice this program was advertised in the legislature is going to help low income families send their kids to private schools i think the chances of a poor parents in arizona who wants to send their kid to a private school of getting together with a lawyer and setting up a five zero one three c corp and getting friends to contribute to it it's theoretically possible it's practically impossible and the practical problem here is that different s t o's have different pools of money and those schools may be twice as much for kids going to catholic schools for the catholic as you know as for kids going to jewish schools and  doesn't make that much sense it's not the amount of the it's not the the amount of who goes to which school it's where the pressure is put on parents to send their kid to a religious school and if the religious as theo's have a lot more money per capita for applicants than the non religious s t l which is perfectly possible here because the churches go out and get their constituents their parishioners to contribute telling hey it doesn't cost you anything support lutheran parents to send their kid to a lutheran school if they really want to get the kid if there were a year if this landscape was broader the market created as judge nelson has suggest out there so in terms of a parent's freedom of choice genuine independent choice that zalman talks about there are no constrictions there are in the market has developed a panel play of choices is that change the constitutional framework no it's still unconstitutional if the market by accident happened to mirror the preferences of parents which is theoretically possible undoubtedly practically impossible or they ought to be very needs and i can freely choose to do that yes but they may not have enough money to fund you whereas the religious as teel next door may have all lot of money so you can get a full tuition scholarship from let's say the jewish s d o to send your child to a jewish religious school if you go to the arizona school choice trust their average scholarship is fifteen hundred dollars so there is a tremendous amount of possibility freshers the state can give money to the and you may not be able to harmonize but but that we're the ones around but you can give money to the parents even if the parents to give money to go to the catholic school because it's the parents choice where it can't give them much money to the catholic applies the one big difference that you don't have to decide the case this to decide the case but this program is nothing like the program in selma the program is dumb and was meant to meet an educational crisis and they permitted ohio to do that because otherwise these poor inner city black kids would have to go to completely inadequate schools nothing like that is happening here whether the zelman exception to the general rule that you can't use tax revenues to pay for religious education applied when there isn't a crisis where you're just trying to as the states as you doing here improve the financial health of the private schools or give middle class parents a chance to choose schools that is may please the court i'm politic and i represent the arizona department of revenue i'll be splitting my time with council for intervener mr keller he he will be addressing standing and establishment clause issues i want to briefly address looking at the purpose and plaintiffs have argued that there isn't a valid secular purpose here obviously two courts have decided that and let's assume there's a secular purpose i gone through zelman i look at all the language about parents choice and the option to parents to allocate by their free genuine independent choice and i'm struck by the structure that you created in arizona is created which says that the choice in the market that the parents can make through these intermediaries is limited by how the studios in their own role decide to allocate choice so that the funds that the state is diverting from its coffers into s t go is by that group of organizations reducing the choices open to parents it's true that parents applying for scholarships get to make a choice but the universe from which they get to make that choice is much more limited in fact hardly more limited than the choices that were available in sullenly parents could go to the state fun and to the extent to which the funds were available they could get the two wishing grant and then they could decide whether to use those in a secular or non secular private school i don't get that freedom of choice under your program because i am limited to what the market a market that is created at least by the taxpayer credit dollars choices the parents are the taxpayers at that level and then the studios and i just don't understand how that kind of structure comes within all of the extensive guarantee that parents will have an a three choice to choose to send their children to whatever school they choose what zelman says is that the money will only reach religious schools as a result of the parents choice and that is the case here the money only reaches the religious schools because of the parents choice though that's not true because the u s to yos of already set up a prequel of where we're to this religious based what's the purpose of this is to knows i mean why do you need them why can't you just say the state will give this money directly to the those are the ones that are being held why are there any different from a religious school itself because the money goes as a result of it as a contribution by a taxpayer to an organization letting a tax payer use my tax credit for the religious school the state is not making the decision the state is not choosing gets the money that is being made by private individuals and the direct aid cases all involve situations where the state is actually making the decision as to who gets the money the person should give the money directly to the target an individual may donate money to the church entire taxes you may give your taxes instead of paying taxes you may make contributions to the church that would be all right  that is given to a broad class of individuals and it's not part of a scheme of taxation that is consistent those are some of individuals it is also part of a legitimate scheme of taxation in arizona it's consistent with that the credits deductions and exemptions that are given in arizona and it's not in it is similar to supreme court and nih quest and and also has not differentiated between credits and  regarded as steve money of the state there's no doubt that the state was entitle to the dollars and it's deliberately saying we're going to let you allocate it will stick with what it does a thousand dollars of a married couple as i understand it can allocate ten thousand dollars of their tax liability to a religious studio that's their choice if they told the state as they were paying their taxes if the auction had been you may as you can do on a presidential run you know you can deduct a dollar or have that taken by the arizona has all right you can check this box in a thousand dollars of your tax dollars that you're paying to the state will go to one of the you can check off the s t o's that we've qualified and here's the catholic what you will is that what it is about what's going on here knowing your honor that what it is is is there allowing individuals to choose to contribute to into the hands of the religious all of these got into the hands of the religious and religious institutions by the choices of the recipients not the donors not the taxpayers it was by the recipients and the recipients if we focus on that end of the spectrum their choices are being limited by pre conditions set by the taxpayer but they're still able to choose what school that they want to send a church or into they aren't they're not allowed to choose what school they will get a scholarship that is the whole purpose of the program is not to are give taxpayers that choice to allocate the purpose as i understand it is to provide to wish and gramps to needy school children you that would still be ok if it were truly up to the choice of individuals and not the state employees there i want to make sure the choice of the taxpayers not choice of the individual applicants they are looking for dollars the choose to go to the private school private secular school but i can't get your aid state because all of the taxpayers have checked off the religious as to your box and you say that would be ok because it's the choice make is that the relief that plaintiffs are requesting can only be given if you change the language of the statute in arizona supreme court has already determined that the language of the statute is constitutional i don't think we said we didn't want to hear about it we didn't want to hear about it oral argument because the other issues it's more pressing but we read your briefs ok we always read the briefs believe me we read continue providing scholarships to the many children who rely on them so yes i would i would like my clients to have the opportunity to continue to receive tax credit funds and fund their scholarships let me let me first address judge fisher's question with regard to how the program operates this program does not operate like a tax check off program you know ok i just want to make i just i just want to make sure i want to make that clear and then all of what i'd like to do is address the private choice aspect of the program which seems to be of significant concern to this court the reason why we ask whether the program is based on true private choice is because we want to determine whether the state it's coercing parents to choose religious options but instruction that question must be answered by evaluating all of the options that arizona provides at school children we don't focus solely on this program under arizona as they offer to public open enrollment for all public children attend the roosevelt school district which recently made front page headlines as continuing to be a failing school district which is why he relies on his this scholarship to get his children out of that that roosevelt school just reserved which is a failing school district in arizona  so here we have open enrollment we have charter schools we have magnet schools we have a home school policy that basically arizona had done everything it possibly could do to open up all of the public choices to arizona schoolchildren and then enlisted private school options by creating this particular tax credit program which will and as far as the state is concerned any person can open up and it can confound and i don't have you know the funders the taxpayers don't have their own dependence necessarily going to the schools because of their philosophical belief that they want to do this and they decide they want choices open to the election always apply to s t t yeah and but most likely what would happen is that they would select the religious or non religious private school that they want their child to attend and then they would work with that school to figure record reflects the council argue that there's a waiting list for for yours that and that number is declining rapidly but there are two there truth response that i'd like to make with regard to that number one that waiting list doesn't reflect parents that may have applied to other scholarship organizations and actually received the scholarships we just can't track that and the number two arizona is also recently enacted a corporate scholarship tax credit which is allowed  qualified school of the parents truest your honor what i believe the supreme court was saying was that any parent is permitted to apply to any s t o to attend any school that is funded by that as cio that's and yes they have public schools have open enrollment they have charter schools that magnet schools have virtual schools fertile academies in arizona there is there is no state coercion going on here that's forcing children parents as a result of this program to choose religious even implementation of it here would be for the state to give money directly to the kurds who could then choose to go to any school they want and hundred gallon that would be permissible absolutely right yes because they didn't want to give the money to the pay at least some state income tax to contribute fully have to put up married couple has to pay a thousand dollars seventy thousand taxpayers and i was on contribute to this program there are two million taxpayers in arizona three percent of them do that they are the three percent who tend to be more wealthy poor if a bunch of poor taxpayers want to set up a nest you know and get their friends to contribute they got to have rich friends poor people find it very hard to use this program and i'm making is that poor people would find it very difficult to set up an s t l and even if they did the money that goes into the s p l has to come from taxpayers poor people can't get all their friends in the neighborhood to give money to the s p l because they don't have it  remember in order to contribute you know you have to pay state income taxes but you have to be liquid on the summer thirty first you have to have cash on the summer thirty first you have to be able to write a check to the s t o then you get it back later poor people don't