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Arizona high court rejects private school vouchers

PHOENIX – Two voucher programs that allowed about 450 foster children and disabled students to attend private schools were declared unconstitutional by the Arizona Supreme Court on Wednesday.

The programs created under a 2006 law violated the Arizona Constitution’s prohibition against providing state aid to private schools, the court said in a unanimous opinion.

Though supporters argued that students and their parents were the true beneficiaries of the programs, the Supreme Court’s ruling said they still trip up against the Constitution’s prohibition against appropriating money for private education. The program gave cash grants in the form of state payment warrants to parents, who must sign them over to private schools their children attend.

The programs are “a well-intentioned effort” but the Constitution’s flat prohibition is clear, Justice Michael D. Ryan wrote. “The framers plainly intended that Arizona have a strong public school system to provide mandatory education.”

Voucher supporters argued that the programs help parents meet their children’s educational needs. Opponents said vouchers undermine state support for public schools.

The two state voucher programs represented one in a series of education initiatives adopted by the Republican-led Legislature at the urging of school-choice advocates.

Other changes made since the mid-1990s include providing public funding for charter schools, giving income-tax breaks for donations for private school scholarships and allowing students to attend public schools outside their attendance areas.

Groups mounting the challenge to the voucher programs included the Arizona Education Association, the Arizona School Boards Association and the American Civil Liberties Union of Arizona. Groups backing the programs included the Institute for Justice, the Arizona Autism Coalition, the Alliance for School Choice and the Center for Arizona Policy.

The ruling said the programs are illegal “absent a constitutional amendment,” and a lawyer who helped defend the programs said school-choice supporters would consider that option. Another is to try to fund the programs with a tax credit for private donations, said attorney Tim Keller of the Institute for Justice.

“I certainly get the sense that the interest exists” in a constitutional change, but it’s too soon to say what course will be taken, Keller said. “This is not end of the line for school choice programs in Arizona.”

An Arizona School Boards Association official said the programs plainly tested the water for a more expansive voucher program “that would siphon state funds from our public programs.”

“That test has failed” and the state should focus now on providing full funding for public schools, said Panfilo Contreras, ASBA executive director.

After the Court of Appeals overturned a trial judge and ruled last May that the programs were unconstitutional on grounds that they aided private schools, a Supreme Court justice gave permission for them to continue during the current school year. Wednesday’s ruling left that order intact.

Deciding the case on the aid to private schools question, the Supreme Court did not rule whether the programs violate a separate constitutional prohibition against state funding for religion. The Court of Appeals said they didn’t.

Each program was funded at up to $2.5 million annually. However, funding was not included in the current state budget when it was drafted last June — after the Court of Appeals ruling struck down the programs — under the direction of then-Gov. Janet Napolitano, a voucher critic. Funding was subsequently provided by redirecting part of the Department of Education’s appropriation.

The program for disabled children provides grants keyed to a state education funding formula, varying from $5,000 to $25,000 depending a child’s disability. The program for foster children provides grants up to $5,000 or a school’s total tuition and fees, whichever is less.

In 1999, the Supreme Court upheld the constitutionality of an income tax credit for individuals making donations for private school scholarships. The court said the money involved belonged to the donating taxpayers, not the state, and wasn’t a state appropriation.

The vouchers are different because that money is “withdrawn from the public treasury and earmarked for a specific purpose,” Ryan wrote in Wednesday’s ruling.

Keller said the ruling “certainty reaffirms” the 1999 ruling on the tax-credit issue.

The Legislature in 2007 added a corporate income tax version for businesses’ donations, and the Court of Appeals on March 12 upheld it.

Ryan signed the unanimous opinion joined by Justices Rebecca White Berch, Andrew D. Hurwitz and W. Scott Bales, as well as Court of Appeals Judge Ann A. Scott Timmer. Timmer replaced Chief Justice Ruth V. McGregor, who excused herself from the case.

Ryan, Berch and Timmer are Republicans who were appointed by former Gov. Jane Hull, a Republican. Hurwitz and Bales are Democrats appointed by former Gov. Janet Napolitano, a Democrat.


The vouchers case is Caine vs. Horne, CV-08-0189-PR.


On the Web

Arizona Supreme Court:


American Civil Liberties Union of Arizona:


Arizona School Boards Association:


Arizona Education Association:


Institute for Justice:




“This is a terrible result for Arizona students and their parents. The Arizona Legislature acted to provide meaningful education options for students who have special educational needs. Today’s opinion from the Supreme Court ignores the needs of students and penalizes parents for choosing religious schools that meet their children’s needs.” — Cathi Herrod, Center for Arizona Policy president.

“This ruling will enable Arizona to put the focus on and the full funding for education in our state back where it should be, our public schools. It was clear from the start that the purpose of these limited voucher programs was to test the legal waters in order to have a more expansive voucher program that would siphon state funds from our public schools to support private, often religious education. That test has failed.” — Panfilo Contreras, Arizona School Boards Association executive director.

“This is not the end of the line for these parents or for school choice advocates. We will consider all of our legal and policy options in light of today’s unfortunate decision in the hopes of helping these vulnerable students obtain the best education that Arizona has to offer, regardless of whether that is in a public or a private school.” — Tim Keller, Institute for Justice attorney.

“This is a victory for all public school children in Arizona. Now Arizona’s legislators can get to the business of providing an adequate investment in public schools, one that meets the needs of all Arizona’s children and is supported by the state’s Constitution.” — John Wright, Arizona Education Association president.

“Nobody knows better than parents what’s best for their children, and that’s especially true for a child’s educational needs. This program gives parents choices, and I’m very disappointed that it has been found to be in violation of our state’s Constitution.” — Tom Horne, state superintendent of public instruction.

“Voucher schemes offer the illusion of ‘choice,’ when at best, they increase the opportunities for only a handful of children who will be carefully selected by private and religious schools that have the luxury of deciding whom they want to admit.” — Alessandra Soler Meetze, American Civil Liberties Union of Arizona executive director.

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