Arizona Supreme Court Delivers Stunning Blow to School Choice

Published May 1, 2009

With Arizona’s highest court putting an end to the state’s two targeted voucher programs, supporters are seeking solutions to serve the needs of students destined to be displaced this fall.

On March 25, the Arizona Supreme Court ruled 5-0 the state must end the Scholarship for Pupils with Disabilities and the Displaced Pupils Choice Grant—its voucher programs for special-needs and foster-child students, respectively. Justices ruling in the Cain v. Horne matter determined the programs violated two constitutional Blaine Amendments prohibiting the appropriation of public dollars to private religious organizations.

The two scholarship programs, both enacted in 2006, are serving 225 special-needs children and 248 foster care children in 2008-09. The court allowed students to stay enrolled in their current private schools with scholarship funding through the end of the school year.

“I think this ruling is going to have an unfortunate impact on participating children’s lives,” said Dan Lips, senior policy analyst for The Heritage Foundation in Washington, DC. “These scholarships were providing a lifeline for these children, who are among the most at-risk in our traditional public school system.”

Serving Individuals

The Institute for Justice, a national public interest law firm, intervened in early 2007 to defend the scholarship programs after a host of organizations filed suit to shut them down. Tim Keller, executive director of the group’s Arizona chapter, said the ruling broke ranks with preceding decisions that looked at the primary beneficiary of a given program to make the legal determination. In Arizona, vouchers are paid directly to parents, who then sign the checks over to the schools of their choice.

“If it’s not an institution but an individual, it passes muster,” Keller said. “I think there was a major shift in Supreme Court jurisprudence.”

Prominently featured in defense of the program was Lexie Weck, one of the 473 students at risk as a result of the Cain ruling. The 7-year-old special-needs student is the daughter of case defendant Andrea Weck, who in an online video has attested to Lexie’s remarkable academic and social progress since the scholarship enabled her to attend the private Chrysalis Academy in Tempe.

Keller said Weck’s case was typical, noting many of the scholarship recipients “were poorly served in the public school system.”

Competing Standards

Keller believes the ruling is unclear about the current policy that allows public schools, instead of parents, to place special-needs students in private schools to receive services. He said half the students at Chrysalis are placed there directly through this process.

“If allowing parents to use public funds to buy a private school education is unconstitutional, so is allowing public school districts to do the same thing,” Keller said.

Panfilo Contreras, executive director of the Arizona School Boards Association, one of the entities that sued to end the programs, said school districts are bound by a careful process of review before placing a child in a private school, and districts are held accountable for oversight of those students.

“Public bodies are entrusted with allocating public monies and are held accountable for the appropriate and effective use of those funds,” Contreras said.

Clear Alternative

Andrew Coulson, director of the Cato Institute’s Center for Educational Freedom, said the Arizona ruling provides the remedy to preserve opportunity for the affected students.

“The court laid down a clear path for continuing to offer real school choice to these families: educational tax credits,” said Coulson.

The Arizona Supreme Court affirmed in Cain “that tax credits for contributions to school tuition organizations were not appropriations of public money” and therefore don’t violate the state’s Blaine Amendments. (See story on facing page.)

“All the court is asking legislators to do is connect the dots—expand Arizona’s existing education tax credit scholarship programs to serve special-needs students,” Coulson said.

Seeking Solutions

Contreras says the school boards association opposes tax credits as well, claiming “they improperly divert public funds.”

Keller believes Arizona’s existing corporate tax credit program could be the best vehicle to serve the nearly 500 students who will lose their scholarship aid at the end of the current school year. Changes likely would have to be made to the caps on scholarship amounts and the means-testing provisions in the programs.

“I think we’re really looking at the need for a legislative solution,” Keller said. “It has to be done this year to save the kids who are relying on the scholarships today.”

Moving Forward

Lips said the Cain ruling shows the urgency of removing Blaine Amendments.

“I think this decision highlights the need for education reformers and policymakers to consider ways to amend state constitutions to remove these outdated legal restrictions,” Lips said.

Keller said that remains a possibility in Arizona, where it could be accomplished by popular vote either through a legislatively initiated referendum or a citizens’ petition drive. “Right now, every conceivable legal option is still on the table,” he said.

“This is not the end of the line for school choice in Arizona,” Keller said. “We’ll continue to push for innovative school choice programs, and we expect Arizona’s current school choice programs to continue and flourish.”

Ben DeGrow ([email protected]) is a policy analyst for the Independence Institute in Golden, Colorado.

For more information …

Cain v. Horne, Arizona Supreme Court, March 25, 2009:

Andrea Weck and School Choice (video):