In 2008, Georgia’s General Assembly enacted the Qualified Educational Tax Credit Program in an effort to expand educational opportunities for schoolchildren and provide alternatives for parents concerned about underperforming public schools. Under the program, individual and corporate donors can receive a credit against their state income tax liability in exchange for contributions to qualified, nonprofit Student Scholarship Organizations that aid Georgia families in paying tuition at qualified private schools of their choice.

Unfortunately, opponents of school choice are once again trying to restrict parents’ ability to select the best education for their children. Because many of the scholarship students use them to attend religiously affiliated schools, the plaintiffs in this case argue that the tax-credit program entangles government in religion. Specifically, they claim that the program violates the Georgia constitution’s No-Aid Clause—one of the historically anti-Catholic Blaine Amendments—which forbids the taking of money “from the public treasury, directly or indirectly, in aid of any church, sect, cult, or religious denomination or of any sectarian institution.” They also allege a violation of the Gratuities Clause, which says that “the General Assembly shall not have the power to grant any donation or gratuity or to forgive any debt or obligation owing to the public.” Several families who have benefitted from the program, represented by the Institute for Justice, have intervened to defend the law.

The trial court held that plaintiffs lacked standing to challenge the tax-credit program. It further ruled that, even if they had standing, plaintiffs’ constitutional arguments failed because tax credits are not government funds. Violations of the No-Aid Clause require that public funds be spent in aid of a sectarian institution, and the Gratuities Clause could not have been violated because “the General Assembly cannot donate or give what it does not own.” Plaintiffs appealed and Cato has now filed an amicus brief, in collaboration with Neal McCluskey and Jason Bedrick of our Center for Educational Freedom, before the Georgia Supreme Court.

We urge the court to affirm the determination that the tax-credit program does not violate the state constitution, focusing on the fact that it does not involve spending public funds for any sectarian purpose. Because the program makes no expenditures from the public fisc, it cannot violate the No-Aid Clause. Taxpayers choose to donate voluntarily using their own private funds and receive a tax credit for the amount of the donation; no money ever enters or leaves the treasury.

The challengers attempt to get around this fact by claiming that the credits constitute an indirect public expenditure, but this argument relies on a budgetary theory known as “tax expenditure analysis” that finds no support as a legitimate means of constitutional interpretation under Georgia (or federal, or any other state) law. Indeed, the U.S. Supreme Court rejected this type of reasoning in Arizona Christian School Tuition Organization v. Winn (2011).

The argument that the program constitutes an unconstitutional gratuity is likewise incorrect because the tax credits are not public funds, and the government cannot give away that which it does not own. Even if Georgia were giving up something of value, it would not be a “gratuity” because the state receives a substantial benefit in return: increased educational attainment, plus the secondary effects that increased competition and a more educated citizenry create.

The Georgia Supreme Court should affirm the lower court’s decision and uphold the state’s Qualified Educational Tax Credit Program—ensuring educational choice for Georgia families, regardless of how much money they make.