Arlington, Va.—The Institute for Justice and its Arizona Chapter today pledged to defend Arizona’s two new publicly funded scholarship programs from legal attack. The programs are designed to help especially vulnerable students—those with disabilities and those in foster care—secure quality educational opportunities in private schools. A coalition of special interest groups filed their legal challenge today, skipping the trial court and asking for a resolution of the case by the Arizona Supreme Court.
“This is an unprecedented and unconscionable effort to block educational opportunities for our most vulnerable children,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter, which will intervene in the lawsuit on behalf of parents who wish to use the new scholarship programs. “We will vigorously defend both programs and work to vindicate the rights of parents to secure a quality education that meets their children’s needs.”
Never before have scholarship programs benefiting special needs students been challenged in court. Arizona’s $2.5 million program follows in the footsteps of successful programs in Florida (now serving more than 16,000 children) and Utah and a scholarship program for children with autism in Ohio. Research and experience show that special needs children in particular benefit from securing individualized educational environments that best suit their needs. Arizona’s groundbreaking $2.5 million scholarship program for students who have been in foster care—the first of its kind in the nation—is designed to help students who often fall very far behind in school because of the disruptions to their lives, according to researchers.
“That school choice opponents are aiming their legal firepower at two programs designed to help the neediest of children shows just how desperate they are to maintain the educational status quo,” said Chip Mellor, IJ president and general counsel. “The current system simply isn’t working for too many children, and that’s why we will fight wherever and whenever necessary to vindicate the promise of equal educational opportunity.”
The legal challenge, filed by the ACLU of Arizona, the People for the American Way and the Arizona Center for Law in the Public Interest, claims that the scholarship programs violate the Arizona Constitution’s Blaine Amendment and its requirement for the maintenance of public schools.
But the Arizona Supreme Court has already rejected both arguments. In 1999 in Kotterman v. Killian, the court upheld Arizona’s scholarship tax credit program despite the Blaine Amendment, calling the provision a “clear manifestation of religious bigotry.” The court also recognized that school choice benefits parents and children—not schools, religious or otherwise.
“The same principle applies here that did in Kotterman: school choice programs help parents and children, not the schools they happen to choose,” Keller explained. “Empowering parents to make the most critical decision in their children’s lives—how to get a quality education—is without a doubt constitutional.”
Moreover, Arizona’s Constitution has never been interpreted to prohibit educational options beyond the traditional public schools. In a line of cases that includes Kotterman, the court has recognized that the requirement to maintain public schools does not prohibit the Legislature from doing more to help educate children, including providing private school options. In fact, the Arizona Supreme Court noted that school choice programs “further the objective of making quality education available to all children within a state.” State supreme courts in both Wisconsin and Ohio rejected similar legal claims against school choice programs.
“School choice helps parents, children and even public schools who benefit from ‘healthy competition,’ as the Arizona Supreme Court has recognized,” added Keller.
IJ, the nation’s leading legal advocate for school choice, is currently defending Arizona’s new corporate tax credit scholarships in state court and the individual tax credit scholarships program in federal court. In addition to its work in Arizona, the Institute for Justice also helped win a victory in the U.S. Supreme Court for school choice, representing parents in Cleveland’s school choice program, and successfully defended vouchers in Milwaukee and tax credits in Illinois. IJ is also working to re-open Maine’s century-old school choice program to both religious and non-religious schools.