State Court Won’t Take Up Az. Vouchers

Published March 1, 2007

On January 9, the Arizona Supreme Court declined to hear a legal challenge to the state’s newest educational voucher programs–one for foster children, the other for special-needs children.

The special-action lawsuit filed on November 14, 2006 by the Arizona chapter of the American Civil Liberties Union, People for the American Way, and three Arizona residents contended the programs violate the state constitution’s provision against using public funds for religious and sectarian schools.

The programs provide state-funded scholarships for foster children and disabled children to attend the schools of their families’ choosing, public or private.

“We consider [the court’s decision] a first-round victory,” said Tim Keller, executive director of the Arizona chapter of the Institute for Justice, which represented parents who want to use the state-funded scholarships for their children’s education.

Lower-Court Challenge

The challengers asked the Arizona Supreme Court to accept the case directly, thereby bypassing the trial court system. The high court’s ruling means school choice opponents can file again, this time in the lower courts.

Keller said he expects a legal challenge to come soon. A new filing would “allow school choice supporters to build a record that will demonstrate the benefits of school choice,” he said.

“I think it will be a good thing if we get to put school choice on trial,” Keller added.

Don Peters, the plaintiffs’ attorney, confirmed Keller’s expectations: His clients will file their complaint in trial court, though he didn’t say when.

Peters said he and his clients were “surprised and disappointed” by the state supreme court’s ruling.

“I think it’s important for everyone to know [whether vouchers are legal in Arizona] because these are the first voucher statutes enacted in Arizona,” Peters said. “The legislature needs to know one way or another.”

Established Precedent

Just before the state supreme court’s ruling, the Institute for Justice released a report showing Arizona already has six different educational voucher programs. The total annual cost is $22 million–more than four times the cost of the programs for foster children and disabled children helping more than 22,000 Arizona students annually to attend the schools of their choice.

“If the voucher programs described in this report are constitutional and sound policy (as school choice opponents tacitly admit by failing to challenge them legally or in the court of public opinion),” the report states, “why aren’t publicly funded scholarships for foster and disabled students?”

For example, the Leveraging Educational Assistance Partnership (LEAP) program gives qualifying college students grants to spend at any postsecondary institution of their choice, public or private. Established in 1976, the program awarded 4,131 grants worth $2.8 million in the 2005-06 academic year.

The Institute for Justice has long maintained that these programs, like the two newest programs, do not favor religious instruction.

“It can’t be said that the state is in any way supporting religion over non-religion,” Keller insisted. “The programs on their face are completely neutral and allow parents to make the choice.”

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

For more information …

“Private Choice in Public Programs: How private institutions secure social services for Arizonans,” by Dick M. Carpenter II, Ph.D. and Sara Peterson, published in January 2007 by the Institute for Justice, is available through PolicyBot™, The Heartland Institute’s free online research database. Point your Web browser to and search for document #20600.