Arizona Voucher Programs Survive Challenge

Published September 1, 2007

On June 13, Maricopa County Superior Court Judge Bethany Hicks ruled Arizona’s voucher programs for foster children and special-needs students are constitutional. The decision comes one year after the tuition scholarship programs were signed into law by Gov. Janet Napolitano (D).

Because most school choice legislation is challenged in court, proponents are hailing the decision as proof that vouchers and similar programs are legally sound.

“The Arizona courts have consistently ruled that voucher programs, tax credits, and tax-deductible donations to scholarship-granting organizations are constitutional, fair, and benefit students,” said Andrew Campanella, spokesperson for the Alliance for School Choice, a Washington DC-based advocacy organization. “People can appeal all they want–but the programs are not only constitutional but also the right thing to do.”

Earlier this year, the Arizona supreme court rejected the first legal challenge to the vouchers. In February–about one month after the state supreme court’s decision–several groups, including People for the American Way (PFAW), Arizona Education Association, and ACLU Foundation of Arizona, filed a second challenge.

‘Inhumane’ Effort

Formerly called The Displaced Pupils Choice Grant Program and Arizona Scholarships for Pupils with Disabilities Program, the legislation serves the state’s most vulnerable students. The Displaced Pupils program is open to any child who was placed in foster care at any time before graduating high school or earning a general equivalency diploma. The scholarship covers the price of tuition and fees, with a cap of $5,000.

The program for students with special needs is open to any disabled child who has been issued an Individualized Education Program by the state and attended a public school during the previous school year. The amount of financial assistance is based on the amount of money a public school would have received to educate the child.

Clark Neily, a senior attorney at the Institute for Justice, a Virginia-based libertarian public interest law firm, represented six families in the Arizona case. He said the fight against school choice legislation designed for special-needs students and foster children is unprecedented.

“In nearly 20 years, this is the first time we have ever seen school choice opponents challenge a program specifically designed for children with special needs,” Neily said. “Their willingness to force those kids back into public schools that were systematically failing them is cynical, inhumane, and smacks of desperation.

“School choice is the wave of the future, and their desperate attempts to block the schoolhouse doors to keep children trapped inside recalls a time when other people stood in schoolhouse doors to keep kids trapped outside,” Neily continued. “Those people were on the wrong side of history then, and school choice opponents are on the wrong side of history now.”

Settled Issue

Neily said voucher opponents plan to appeal the latest decision by Hicks. In a November 2006 news release, PFAW Vice President Elliot Mincberg said religion is a key reason they oppose the scholarships.

“This voucher scheme thumbs its nose at the separation of church and state,” Mincberg wrote in the statement. “The Arizona Constitution is very clear that taxpayer money shouldn’t fund religious instruction or private schools.”

But Campanella said the issue of religion and vouchers was addressed in 2002 in Zelman v. Simmons-Harris, when the U.S. Supreme Court deemed an Ohio voucher program constitutional.

“In the Zelman case, the U.S. Supreme Court said that vouchers are constitutional as long as the program does not prohibit parents from choosing a religious school,” Campanella explained.

“Money is not being funneled from public schools,” Campanella continued. “It is being put in the hands of the parents and allows them to use it however they want for their child’s education. The money is being given to the parents, not the private institutions.”

United Front

For now, the Arizona scholarship programs remain available for the upcoming school year. Although their future may be uncertain, Campanella said the latest decision in Arizona is positive for voucher programs all over the country.

“The constitutionality of the vouchers has been affirmed,” Campanella said. “It’s unfortunate that these lawsuits continue to be filed, especially when special-needs students and foster children are being used to make some political point.

“We have to come together as a nation to say ‘this issue matters.’ We have to stand up and say parents should have the choice in deciding where and how their child is educated,” Campanella said.

Aricka Flowers ([email protected]) writes from Chicago.