Arizona Supreme Court Hears School Choice Arguments

Published February 1, 2009

More than 200 parents and their special-needs children showed up outside the Arizona Supreme Court on December 9, carrying signs and chanting “school choice works!”

Inside the courtroom, attorneys representing those families argued offering publicly funded scholarships to allow learning-disabled and foster children to attend private schools is not only  constitutional but in fact is already being done by Arizona’s public education system.

“What is going on here is allowing parents to purchase educational services for their children in the same manner that public school districts are permitted to do every day for children with disabilities,” said Tim Keller, executive director of Arizona’s chapter of the Institute for Justice, a civil liberties law firm.

Educational Benefits

One of Keller’s clients, Andrea Weck, is a divorced single mother of three daughters, including twins. One of the twins—7-year-old Lexi—suffers from autism, cerebral palsy, and mild retardation.

Weck said she “wanted to cry” when a state appellate court ruled last May the scholarship program she uses to send Lexi to a private school is unconstitutional. The scholarships had allowed Lexi to benefit from the education and services provided by Chrysalis Academy, a private school in Tempe, which has one teacher for every two students.

In a videotaped interview conducted by the Institute for Justice, Weck said her daughter has “made enormous strides” during her two years at Chrysalis.

“Lexi actually sits and reads with her sisters—something she never did before,” Weck said. “She wants to be where we are—she doesn’t want to be in her room. Now, she’s part of a family. She never would have learned these skills in the public schools.”

Schools Insist on Control

Weck said her daughter’s educational future is now in question simply because she, and not the public education system, decided Lexi needed to attend Chrysalis Academy. By contrast, she said, the “dozen or so kids who are assigned there by public school officials are not in jeopardy.”

Opponents of the $5 million scholarship programs benefiting Weck and about 400 other Arizona students this year argue the scholarships violate Article 9, Section 10 of the state’s constitution, which forbids appropriating public money “in aid of any church or private or sectarian school, or any public service corporation,” commonly known as a Blaine amendment. Several states have such amendments in their constitutions.

Arizona’s amendment is meant to “ensure that citizens are not taxed to support the propagation of religious views they don’t agree with,” said attorney Don Peters, who represented groups opposed to the scholarship programs, including People for the American Way,  the American Civil Liberties Union, and the state teachers union.

Keller argued justices should consider “who [legislators] have given aid to, and for what purpose.” The scholarships aid parents in providing their children with needed educational services, not propagating religion, he said.

‘No Other Masters’

Peters argued that while the voucher program is unacceptable, it’s not unconstitutional for public schools to send children, and tax dollars, to private schools for the very same reason Weck enrolled her daughter at Chrysalis with funding she controlled.

Justices vigorously questioned both sides and offered indications they might be looking for ways to direct the legislature to a compromise.

Justice Andrew Hurwitz, for example, asked Peters whether the legislature would be violating the constitution by continuing to send the ADM (Average Daily Membership monies, the basic amount of funding allotted to each school for each student) funds to the school where these special-needs and foster children started out, but offering an additional $5,000 for the same program.

Peters said that would be an unacceptable compromise.

“Under the Arizona Constitution, the legislature is charged with both maintaining and improving the public school system,” Peters told justices. “And I think the intent of the whole document is, this is your vehicle for publicly funded education and thou shalt have no other masters—this is what you will serve.”

Local Reactions

Keller said he believes the greater burden of proof was on the plaintiffs to demonstrate how the current law is unconstitutional.

Some analysts say the dispute was exacerbated by the public education system’s decision to direct some special-needs children and funding to private schools.

“If there had been no public money ever going to private and parochial schools through the contracts, I think this would be a slam dunk to say, ‘This is illegal, what you’re trying to do with the parents,'” said Howard Fischer, a reporter for Capitol Media Services, on the Arizona TV public affairs program Horizon on December 10.

The East Valley Tribune, a local newspaper, supported the voucher programs and called the case “a pivotal issue in the movement to create a truly robust K-12 education system that enables parents to select the best possible choice for their children, whether a school is government-sponsored or privately owned.”

Wide Implications

If the justices deem the Arizona Scholarships Program unconstitutional, that ruling could affect a multitude of other programs, including taxpayer-funded college scholarships used to attend private schools.

Keller expects a ruling before the beginning of the 2009-10 school year, which would allow parents to adjust their plans accordingly.

Fischer expects the losing side to mount a ballot initiative. Keller said any attempt to violate parents’ First Amendment rights by excluding religious schools from the Arizona Scholarship Program could trigger an appeal to the United States Supreme Court.

Jim Waters ([email protected]) is director of policy and communications at the Bluegrass Institute for Public Policy Solutions in Bowling Green, Kentucky.

For more information …

Cain v. Horne (Supreme Court case CV 08-0189 PR; Court of Appeals case 2 CA-CV 07-0143):

“Oral Arguments: School Vouchers” on Horizon, December 10, 2008:

“Andrea Weck & School Choice,” Institute for Justice:

“Voucher rule extends beyond disabled, foster kids,” East Valley Tribune editorial, December 7, 2008: