A coalition of special interest groups filed its second legal challenge to Arizona’s school choice programs for special needs and foster children on February 20, 2007. The Arizona Supreme Court rejected the first challenge in January 2007, and once again, IJ intervened to defend the programs on behalf of parents.

Unfortunately, on March 25, 2009, the Arizona Supreme Court declared that Arizona’s innovative programs violate a unique provision Arizona Constitution’s prohibiting appropriations of public funds “in aid of . . . private and sectarian schools.” The ruling runs contrary to decades of Arizona Supreme Court precedent that had always held that programs that provide aid to individuals, not institutions, are constitutional. The ruling also ignored a key holding in the Court’s 1999 decision in Kotterman v. Killian, which upheld Arizona’s Individual Scholarship Tax Credit Program, that school choice programs primarily benefit families and children and that any benefit to private and religious schools was purely incidental.

Fortunately, the Supreme Court’s decision in Cain v. Horne did reaffirm that tax credits do not constitute appropriations, which sends a strong signal to school choice opponents that the Arizona Supreme Court is not going to overrule its decision in Kotterman v. Killian. The practical impact of the Cain decision is that Arizona’s existing school choice tax credit programs will continue to operate, and IJ and our allies will work with the Arizona Legislature to pursue every opportunity to expand those programs, particularly to assist the hundreds of families devastated by the Court’s shameful decision striking down the voucher programs.

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In June 2006, Arizona Gov. Janet Napolitano signed into law two new tuition scholarship programs designed to expand educational opportunities for foster children and children with disabilities.  The Displaced Pupils Choice Grant Program 1 and the Arizona Scholarships for Pupils with Disabilities Program 2 offer the promise of educational stability for foster students and specialized attention for children with disabilities.

The new scholarship programs are desperately needed.  Every year, thousands of Arizona children enter the foster care system.  According to a recent report of the Arizona Department of Economic Security, from the period of October 1, 2005, through March 30, 2006, 3,753 children entered the system. 3   These displaced children are at the highest risk for falling through the cracks of our educational system.  Children in foster care are twice as likely to drop out of high school before graduation 4 and they are far more likely to attend an under-performing school than other children (78 percent vs. 43 percent). 5   Students with disabilities likewise face numerous challenges that other children do not.  Nationally, the number of children enrolled in special education programs has increased more than 50 percent since the 1960s. 6

Despite those statistics, school choice opponents, including the ACLU Foundation of Arizona, the People for the American Way and the Arizona Education Association (the state’s largest teachers’ union), filed a second legal challenge against Arizona’s two new scholarship programs in February 2007, about a month after the Arizona Supreme Court rejected the first legal challenge to the programs.

Never before have school choice programs for special needs and foster children faced legal challenge.  Three other states, Florida, Ohio and Utah, offer scholarships to students with disabilities, and Arizona is the first state in the nation to offer school choice to foster children.

Both historical practice and legal precedent demonstrate that Arizona law is quite favorable to expanding educational options.  Arizona is a national leader in educational choice, thanks to the nation’s most ambitious charter school law and two tax credit programs that give individuals and corporations the opportunity to donate to privately operated scholarship funds that give families the financial ability to choose private schools.  A recent study found that Arizona already has at least six educational aid programs for children who choose private and religious schools, including programs for children in foster care and students with disabilities.  Those programs serve more than 22,000 students a year, totaling nearly $22 million in publicly funded scholarships. 7

Moreover, since 1982 Arizona has routinely placed children with disabilities in private schools when school officials decide such a placement can better serve a child’s needs.  The new scholarship program improves that system by removing bureaucratic red tape and putting the power to choose the right school into the hands of those who know children’s needs best—their parents.

For example, Scottsdale mom Andrea Weck received one of Arizona’s new scholarships to send her daughter Lexie to Chrysalis Academy. Lexie has Cerebral Palsy, autism and mental retardation. For two years, Andrea watched her daughter make almost no academic, social or behavioral progress—until she moved her from public school to Chrysalis.  Already, the private school’s unique play-based curriculum, tailored to the needs of children with autism, has helped Lexie make enormous strides.  Fourteen children receive public funds to attend Chrysalis, but only Lexie and the four other children whose own parents chose the school find their educational futures subject to legal challenge.  The other nine children were placed there by public school officials.

Legally, the arguments against Arizona’s new scholarship programs rely on recycled and rejected claims.  When the Arizona Supreme Court upheld the individual tax credit program in 1999 in Kotterman v. Killian, 8 it rejected the claim that school choice programs violate the state’s Blaine Amendments by offering parents a choice of schools, including religious schools.  (The students are not assigned by the government to those schools, but rather parents independently make that selection from a range of choices.)  The court understood that school choice programs benefit parents and children—not the schools they happen to choose—and therefore do not constitute unconstitutional “aid” to religion.

In Kotterman, the Arizona Supreme Court also noted that school choice programs that include private schools “further the objective of making quality education available to all children within a state.” 9   That reasoning reinforces the court’s earlier interpretations of the Arizona Constitution’s education provisions.  Not once have those provisions been held to limit educational opportunities to the traditional public schools, as opponents are urging in this lawsuit.

On March 13, 2007, the Institute for Justice filed papers on behalf of Andrea Weck and five other families to intervene in defense of the programs before the Maricopa County Superior Court.

  How the Scholarship Programs Work

The Displaced Pupils Choice Grant program is available to any pupil who “has been placed in foster care . . . at any time before the pupil graduates from high school or obtains a general equivalency diploma.”  Each private school in Arizona has the option of participating in the program.  Any school wishing to participate is required to notify the Department of Education prior to the beginning of the school year.  The program is limited to $2.5 million in its first year and the value of the scholarship is the lesser of $5,000 or the total amount of tuition and fees. 10    It is very likely that many of the scholarships ultimately awarded will be for less than the full amount available.  A recent survey of Arizona’s private schools found that the median tuition is only $3,500. 11

The Arizona Scholarships for Pupils with Disabilities Program is available to any child with a disability who has been issued an Individualized Education Program (IEP) and who attended a public school the year prior to receiving the scholarship. 12   The scholarship amounts are based on the funding formula used to determine the amount of money the public school would receive to educate the child.  The Scholarships for Pupils with Disabilities Program continues Arizona’s long tradition of using state-funded vouchers to pay for education of certain disadvantaged children in private schools. 13   Since 1982, Arizona has ensured that students with disabilities are afforded a free and appropriate education at public expense whenever it is determined that the traditional public schools are not able to provide the special education services needed to comply with the student’s IEP. 14   However, the procedures for obtaining placement in a private school under the “old” program require school districts, private schools and parents to navigate a complex bureaucracy.  The new scholarship program for children with disabilities streamlines the process by putting parents in control of their children’s education.

Arizona also participates in the federal Individuals with Disabilities Education Act (IDEA). 15   That program provides Arizona with federal financial assistance for the provision of special education services to disabled students—precisely the same students served by the Arizona Scholarships for Pupils with Disabilities program.  As a condition for the receipt of the federal funds, Arizona is obligated to abide by the substantive and procedural requirements of the IDEA, which include a requirement that local school districts reimburse tuition costs of parents who have removed their children from public school due to an inadequate placement and placed their children in private school. 16   Those private schools can include religious schools, 17 and Arizona is accordingly required to reimburse religious school tuition or withdraw from the program.

The IDEA, however, is a very complex statute, with extensive procedural requirements that can be a nightmare for parents to navigate, especially lower-income parents unable to afford a lawyer.  In order to transfer from public to private school, parents must prove in federal court that the education offered in the public school was inadequate. 18   Many—perhaps most—parents of disabled children lack the resources to mount such a challenge.  The Arizona Scholarships for Pupils with Disabilities program simply enables those parents to seek a private placement for their children without forcing them to navigate the endless complexities of the IDEA remedial process.  It allows parents to place their children in the same private schools (including religious ones) by providing the tuition for which Arizona school districts would have to reimburse if parents succeeded in an IDEA lawsuit.  If the Arizona Supreme Court were to invalidate Arizona’s existing voucher programs it would jeopardize Arizona’s continued participation in the IDEA. 19

The Blaine Game

The primary legal argument offered by the ACLU and its allies is their assertion that the scholarship programs violate the Arizona Constitution’s Blaine Amendments.  The Arizona Supreme Court specifically rejected that argument years ago in upholding the individual tax credit scholarship program.  Even as the state Supreme Court held that the tax credit program did not implicate the Blaine Amendments because tax credits do not constitute public funds, it did not stop there.  It went on and said:

Even if we were to agree that an appropriation of public funds was implicated here, we would fail to see how the tax credit for donations to a student tuition organization [STO] violates this clause. The way in which an STO is limited, the range of choices reserved to taxpayers, parents, and children, the neutrality built into the system—all lead us to conclude that benefits to religious schools are sufficiently attenuated to foreclose a constitutional breach. 20

The Displaced Pupils Grant program and the Scholarships for Pupils with Disabilities program are both completely neutral with regard to religion.  Neither program is designed to benefit private religious schools.  Rather, the programs are designed to benefit parents and children.  There is no incentive to choose a sectarian over a secular education setting.  The decision of which school to choose is left entirely in the hands of parents.

Moreover, the Blaine Amendments have a shameful history.  The Arizona Supreme Court recognized this history of state constitutions’ Blaine Amendments as “a clear manifestation of religious bigotry.” 21   Given that history, the court declared that it would “be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it.” 22   The U.S. Supreme Court has also recognized the Blaine Amendments’ “shameful pedigree” as a legacy of 19th century anti-Catholic and anti-immigrant sentiment. 23   And courts in Wisconsin and Illinois have also rejected attempts to halt school choice using state Blaine Amendments. 24

Besides the controlling legal precedent, there are several other reasons why Arizona’s Blaine Amendments should not be a barrier to school choice.

First, through the federal IDEA law and the state “exceptional student services” law, Arizona has provided public funding for special needs students in private schools for years.  The new program simply streamlines the process and gives parents, instead of courts or bureaucrats, the right to place their child in a private school.  Arizona also provides at least six educational aid programs for K-12 and college students in private and religious schools.  Those programs serve more than 22,000 students a year, totaling nearly $22 million in publicly funded scholarships. 25

Second, Blaine Amendments were intended to address an issue very different from school choice:  the possibility of direct funding for a Catholic school system (and other Catholic institutions) separate from the then-Protestant public schools.  That is why Blaine Amendments prohibit public funds being spent “in aid of” institutions that are “sectarian” (code for Catholic).  By contrast, school choice programs provide scholarships that aid parents and children—not the schools they happen to choose.

Choice is the key element.  Not one dollar reaches a religious or a non-religious school without a parent deciding to spend it there, so the government cannot be said to be subsidizing religious schools—only the education of children.  School choice programs are in fact neutral with respect to religion by allowing parents to choose from a broad range of schools without regard to the religious nature of the school.

Finally, Arizona’s Blaine Amendments should not be used as barriers to school choice because to allow this would amount to religious discrimination and violate the right to Free Exercise of Religion under the U.S. Constitution.  The Free Exercise Clause of the First Amendment and the Equal Protection Clause of the 14th Amendment prohibit government discrimination on the basis of religion—such as by funding students who freely choose non-religious options, but not those who freely choose religious options.  Yet that is exactly what school choice opponents argue—they want the state to discriminate based solely on religion.  For 25 years, the U.S. Supreme Court has consistently held that laws that single out religion for discrimination violate the First Amendment’s right to the free exercise of religion. 26

Arizona’s Constitution Favors Additional Educational Options

School choice opponents in Arizona also argue that the Displaced Pupils Grant Program and the Scholarships for Pupils with Disabilities Program violate the provisions of the Arizona Constitution providing for public schools, including K-12 schools and universities. 27   But nothing in this section of the Arizona Constitution prohibits the Governor and the Legislature from going further and offering additional educational options.  Past practices and legal precedent in Arizona make this clear.

For example, Arizona offers scholarships to students at the state’s private colleges and universities, just as it does for students in public universities, which are part of the “public school system.”  Arizona has two tax credit programs that offer private school alternatives to K-12 students and supports special needs students in private schools through both the federal IDEA law and the state “exceptional student services” program. 28

In addition, the Arizona Supreme Court in Kotterman recognized the value of allowing parents to choose from a broad array of education options for their children.  The court wrote:

Including private schools in the mix of educational options available to students and parents, in itself, is not unconstitutional.  Such a policy can properly facilitate a state’s overall educational goals.  As the Mueller majority noted [referring to Mueller v. Allen, a U.S. Supreme Court case involving tax deductions], private schools frequently serve to stimulate public schools by relieving tax burdens and producing healthy competition…. They also further the objective of making quality education available to all children within a state. 29

Still, school choice opponents claim that the requirement under the Arizona Constitution to provide for a “general and uniform” public school system bars the Governor and the Legislature from providing additional educational options.

This is not a new argument.  School choice opponents tried it first in Wisconsin in 1990 in challenging the Milwaukee school voucher program.  Although the Wisconsin Constitution also requires the state to provide a “uniform” public school system, the Wisconsin Supreme Court correctly reasoned that such a command does not prohibit the Legislature from doing more to further the education of its citizens by providing additional educational options. 30   Opponents tried the argument again, but the Wisconsin Supreme Court rejected it a second time in 1999. 31

Unfortunately, the Florida Supreme Court in January 2006 struck down that state’s pioneering Opportunity Scholarships program for children trapped in failing public schools based on its education provision, which is similar to Wisconsin’s. 32   But there is little reason to think the Arizona Supreme Court will follow Florida’s utterly unprecedented ruling.

Except for containing the word “uniform,” Arizona’s education provisions are quite different from and broader than Florida’s.  Moreover, Arizona has a strong history of providing broad educational options to its students, a practice the state Supreme Court has never once questioned, despite reviewing such cases.  To the contrary, the Arizona Supreme Court’s logic directly contradicts the holding of the Florida court:

Some might argue that the statute in question runs counter to these goals [of improving education] by encouraging more students to attend private schools, thereby weakening the state’s public school system.  But that is a matter for the legislature, as policymaker, to debate and decide.  It is not for us to pass on the wisdom of this or any other social policy. 33

In short, the Arizona Supreme Court has already declared that scholarship programs further the educational goals of the state by “making quality education available to all” and that finding is backed up by evidence showing that school choice actually helps public schools through competition.  There is no reason for the court to abandon established precedent and practice in Arizona.

Parents Fighting for School Choice

IJ represents six families defending the right to send their children to the school of their choice.  In addition to the Weck, Geroux and Okamura families, IJ is defending school choice on behalf of the following families:

Kristinia Peterson of Mesa is the mother of twin 11-year-old sons Damian and Dimitri.  Damian has autism and Dimitri has Asperger’s Syndrome.  For years, the Petersons tried every imaginable educational setting the Mesa public schools had to offer the boys.  They switched schools multiple times and tried several different educational programs; none worked.  Finally, the Petersons received a scholarship through Arizona’s new program and now send Damian and Dimitri to Howard S. Gray, a school that specializes in serving children with special needs.  They chose the school because it offers an intimate campus and the kind of individual, specialized attention the boys need.  The Petersons simply could not afford to make that choice without the scholarship.

Tucson dad Edwin Rivera knows that his son’s public school is not teaching him the skills he needs to become a productive adult.  Edwin Jr., who was diagnosed with autism, is 14 years old and in the seventh grade, but he performs at a kindergarten level academically.  Edwin knows his son is a bright child with potential and he has tried to work with the school to secure the right services, but the school is unwilling to provide the kind of academic or social-skills instruction Edwin Jr. needs.  The Riveras hope the new scholarship program will enable them to choose a public or private school that will prepare their son for a future as a productive adult—before it’s too late.

Kimberly Wuestenberg of Glendale is a single mother of two children, thirteen-year-old Imre and two-year-old Kayden.  Imre was recently diagnosed with Asperger’s Syndrome.  He has difficulty adapting to change and keeping on task in the public school setting, especially because the children around him can be a distraction.  Kimm is eager to find Imre a private placement, but she is afraid to apply for a scholarship because of the current legal action against the program.  If she lost the scholarship, she could never afford to send Imre to private school, and consistency is particularly important for him.

The Benefits of School Choice

School choice is among the most widely studied education reforms, and the results are uniformly positive for children who participate. 34   Study after study confirms that parents who are free to choose are much happier with their children’s educational experience, and their reasons include stronger academic programs, more personal attention and safer environments in their new schools. 35

In particular, researchers studying the nation’s first scholarship program for children with disabilities, Florida’s McKay Scholarships program, found that scholarship students received better services, were safer and were more satisfied than in their public schools. 36   High parental satisfaction with the McKay program has enabled it to grow to more than 17,000 students in just six years.  And the success of the program inspired Utah’s Carson Smith Scholarships for Special Needs Students, Ohio’s Autism Scholarships and Arizona’s Scholarships for Pupils with Disabilities.

Research shows school choice programs also consistently yield positive results for children who remain in public schools.  When parents are free to choose their child’s school—rather than being assigned to schools by bureaucrats or the geography of district lines—public schools are spurred to improve in order to keep and attract students.

In Milwaukee, for example, public school officials admit that school choice has prompted long overdue public school reform and improvement. 37   In Florida, where students in failing public schools received scholarships to attend private schools, public school performance and test scores for children in the poorest performing schools improved markedly. 38   Researchers at the nation’s leading education school, Columbia Teachers’ College, found that competition in education improves educational outcomes such as test scores and graduation rates for students in public schools. 39

Litigation Team

The litigation team will be led by Chip Mellor, the Institute’s president and general counsel.  Institute for Justice Senior Attorneys Dick Komer and Clark Neily, along with Tim Keller, executive director of the Institute for Justice Arizona Chapter, will provide additional litigation support.  Joining the litigation team of counsel is the Honorable Thomas A. Zlaket, former Chief Justice of the Arizona Supreme Court and author of Kotterman v. Killian, which declared Arizona’s tax credit program constitutional under both the state and federal constitutions.

IJ is also defending Arizona’s new corporate tax credit scholarships from a legal challenged filed by the ACLU of Arizona.  The Maricopa County Superior Court dismissed that case, Green v. Garriott, on Wednesday, March 7, 2007, two days after it heard oral arguments in that case.  And IJ is defending the state’s individual tax credit scholarships from a federal lawsuit also filed by the ACLU of Arizona.  A federal judged dismissed that case, Winn v. Hibbs, and upheld the program in March 2005, and opponents appealed.

IJ 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.

For more information, please contact:

Lisa Knepper Director of Communications Institute for Justice 901 North Glebe Road, Suite 900 Arlington, VA  22203 (703) 682-9320 [email protected]

Timothy D. Keller
Executive Director
Institute for Justice Arizona Chapter
398 South Mill Avenue, Suite 301
Tempe, AZ  85281
(480) 557-8300
[email protected]

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