Arizona Voucher Foes Try Again

Published May 1, 2007

In another round of legal battles over Arizona’s newest school choice legislation, the American Civil Liberties Union (ACLU) and several other organizations and individuals filed a lawsuit in trial court on February 20, alleging the two new voucher programs illegally divert public funding to private and religious schools.

Each program–one for foster children, the other for disabled children–provides $2.5 million in state-funded scholarships annually for students to attend the schools of their families’ choosing, public or private.

The suit came just a month after the Arizona Supreme Court declined to hear a special-action lawsuit against the programs, filed in November by many of the same challengers.

“[Vouchers] are bad policy, bad education policy, bad economic policy,” said John Wright, president of the Arizona Education Association (AEA), a union representing educators and other public school employees. The AEA is one of the plaintiffs in the new suit.

Subsidizing Parents

“We have private, independent and religious, church-affiliated schools. Those institutions and schools can find ways to make themselves as affordable as possible,” added Wright, who has been a foster parent since 1994. “But it’s not the business of the state of Arizona to enhance their enrollment.”

Critics of the new programs, which were passed in the 2006 legislative session and signed into law by Gov. Janet Napolitano (D), say the programs violate the state constitution’s Blaine amendment, which holds, “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.”

But supporters insist the state is not directing funds to religious or sectarian schools, because parents and students, not the schools, receive the money and are the beneficiaries of these programs.

“The state supreme court has already decided that the Blaine amendment is designed to ensure the state operates in a neutral fashion,” said Tim Keller, executive director of the Arizona chapter of the Institute for Justice (IJ), which represents parents who want to use the state-funded scholarships for their children.

In the new voucher programs, Keller noted, “not a dollar goes to private schools absent the choice of parents to enroll students.”

Offering Hope

Keller pointed to client Andrea Weck, whose five-year-old daughter Lexie has cerebral palsy, autism, and mild retardation. After two years in an early childhood program at her neighborhood public school, Lexie hadn’t made the progress her parents or teachers expected. Weck enrolled Lexie in Chrysalis Academy, a private school in Tempe that specializes in educating children with autism and related disorders.

Weck reports marked strides in Lexie’s academic and social skills. Lexie received a scholarship for the 2006-07 academic year at Chrysalis through the new voucher program for disabled children. If the trial court overthrows the law, Lexie’s family will be unable to afford her private education.

“One of the most aggravating aspects of this lawsuit is that nine other children are at Chrysalis on public funds,” Keller said. “But the difference is that bureaucrats had a hand in the placements [through individualized education plans or similar programs]. Because my client exercised parental choice, [the plaintiffs in the lawsuit] want to take that away from her.”

Families like the Wecks are keeping a close eye on the case, in part because the plaintiffs asked the court for a temporary injunction, which would bar the state from distributing the scholarships for disabled children. The court will hear oral arguments on June 4. IJ attorneys don’t expect the judge to rule on the injunction before then.

The program for foster children is slated to begin in the 2007-08 school year.

Attacking Tax Credits

A few weeks after the ACLU and other plaintiffs filed suit against the voucher programs, a Maricopa County Superior Court judge dismissed a lawsuit challenging the constitutionality of Arizona’s corporate tax credit program.

The legislation allows dollar-for-dollar tax credits up to $10 million this year for corporations that donate to groups providing grants for private school tuition to children who meet basic criteria. The $10 million cap will increase by 20 percent each year.

In her written opinion, Judge Janet Barton said the program is “legally indistinguishable” from the individual tax credit program upheld by the Arizona Supreme Court in the 1999 Kotterman v. Killian case, which determined tax credits are not public money and therefore not subject to the state’s Blaine amendment.

Furthermore, the judge ruled, because parents–not the state–determine where the funds go, the program is constitutional. The ACLU and the Arizona School Boards Association filed the suit against the corporate tax credit program in September.

Hilary Masell Oswald ([email protected]) writes from Illinois.

For more information …

Penny Kotterman and Others vs. Mark W. Killian, Lisa Graham Keegan, and Others, decision of the Arizona Supreme Court,