Published Online: March 26, 2009

Two Voucher Programs Struck Down in Arizona

The Arizona Supreme Court yesterday struck down two specialized voucher programs, ruling that they violate the state constitution's prohibition on providing state aid to private religious and secular schools.

As a result, the estimated 450 students in the two programs—one for students with disabilities and another for those living in foster care—will lose their state-funded scholarships at the end of the current academic year.

Though supporters of the two voucher plans, enacted in 2006, argued that students and their parents were the true beneficiaries of the programs, the five-member Arizona Supreme Court in a unanimous ruling in Cain v. HorneRequires Adobe Acrobat Reader said the programs still violated constitutional restrictions.

"These programs transfer state funds directly from the state treasury to private schools,” Justice Michael D. Ryan wrote. "That the checks or warrants first pass through the hands of parents is immaterial."

The state court of appeals overturned a trial judge last year and ruled in May that the programs were unconstitutional. A state Supreme Court justice then gave permission for the programs to continue during the current school year, pending the outcome of an appeal to the Arizona high court.

Several Challengers

The legal challenge was mounted by several groups, including the Arizona Education Association—an affiliate of the National Education Association—the American Civil Liberties Union of Arizona, and the Arizona School Boards Association.

"We thought the language of the Arizona Constitution was clear, and we thought that if the court applied that language, this would be the result," said Donald M. Peters, the lead counsel for the plaintiffs. "They did and we’re gratified."

Panfilo H. Contreras, the executive director of the Arizona School Boards Association said in a statement, "It was clear from the start that the purpose of these limited voucher programs was to test the legal waters in order to have a more expansive voucher program that would siphon state funds from our public schools to support private, often religious education."

But Timothy D. Keller, the executive director of the Arizona chapter of the Institute for Justice, and the lead attorney for the defendants, disagreed with the result.

"I think the court got this one wrong on both the law and the facts," he said.

And he vowed that help was on the way for the families who will lose their vouchers.

"This is not the end of the line for school choice in Arizona," he said.

Possible Next Steps

Mr. Keller said one option would be for the voucher students to receive scholarship aid under one of the state’s two existing tax-credit-funded scholarship programs. One program is paid for through donations by individuals, and another by donations from businesses.

Another option, Mr. Keller said, would be to pursue a statewide ballot initiative to amend the state constitution.

Mr. Contreras argued that such an effort would be doomed to fail.

"The only place left to take this issue in Arizona is to the ballot box, and Arizona voters, like all those who have faced the question in other states, will not support having their tax dollars taken from public schools to support private education," he said.

Mr. Keller said he did not view the Arizona ruling as having significant national implications for voucher battles in other states.

"The Arizona provision upon which the court based its ruling is not commonly found in other state constitutions," he said. And Mr. Keller said he was not aware of any other state with an existing voucher program that has such language.

Mr. Peters, the plaintiffs’ lawyer, said he believes the situation may have some limited bearing in other states where vouchers face a legal challenge, though he said the wording of individual state clauses on aid to nonpublic schools tend to differ.

"It certainly wouldn't have overwhelming impact anywhere else," he said.

Vol. 28, Issue 27

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