Defending School Choice in Arizona the IJ Way

January 29, 2009

By Tim Keller

The Arizona Supreme Court heard oral arguments in December to decide the educational fates of nearly 450 special needs and foster children. Thanks to two state scholarship programs that provide educational opportunity and real hope for a better life for these vulnerable schoolchildren, these students have escaped from public schools that failed to meet their individual educational needs.

Yet the Arizona Education Association and the ACLU of Arizona, among other groups, are seeking to dash those hopes by arguing that Arizona’s Scholarships for Pupils with Disabilities Program and its Displaced Pupils Grant Program unconstitutionally “aid” private schools by subsidizing tuition payments.

Last May, the Arizona Court of Appeals issued a decision in Cain v. Horne striking down the programs, even though Arizona school districts themselves routinely place students with disabilities in private schools—in many cases the exact same schools our clients attend—while using state funds to pay the tuition. Under that system, government officials—not parents—decide when to provide students with a private education. The teachers’ unions assert that when bureaucrats make the placement decision there is no “aid” to private schools because the expenditure benefits the student, not the school. That reasoning is exactly why the challenged scholarships are also constitutional.

The Arizona Supreme Court previously explained in Kotterman v. Killian, a landmark ruling that upheld a tax credit program that funds private school scholarships, that school choice programs are constitutional because parents and children are the “primary beneficiaries”—not private schools.

A victory in this case will pave the way for expanded school choice in Arizona and create persuasive legal precedent for states with similar constitutional provisions. The stakes in this case could not be higher. IJ’s school choice team rose to the occasion and exemplified what it means to litigate a case the IJ Way. We brought to bear our litigation, outreach and media arsenals to maximum effect in the courtroom, on the courthouse steps and in the court of public opinion.

In the weeks leading up to the argument, the IJ team filed our final legal briefs, worked to hone my oral argument through a series of moot courts, and, with the help of IJ Senior Litigation Attorney Dick Komer, coordinated the filing of seven “friend of the court” briefs by 12 national, state and local organizations. From a variety of perspectives, education and legal experts made clear that special needs students attending public schools throughout the state have been, and continue to be, deprived of needed services; that school choice is working in Arizona; and that school choice is entirely consistent with the Arizona Constitution.

The morning of the argument, more than 200 parents and children from across the state rallied on the steps of the court. This tremendous turnout was due to the hard work of IJ’s Director of Community Organization Christina Walsh, who mailed hundreds of flyers, made dozens of calls to allies, parents and schools, and coordinated four buses to bring parents and students from all over Arizona to the rally.

Numerous television, radio and print journalists covered the rally and the argument thanks to Director of Communications Lisa Knepper and Assistant Director of Communications Bob Ewing, who tag-teamed the implementation of our detailed communications strategy to ensure that the case received positive coverage throughout Arizona.

While we wait for the Court’s decision, parents are considering what will happen if their children must return to public school. For many students, returning to public school means their social and academic progress will not only halt, but their hope for continued improvement will be lost.

Take six-year-old Lexie Weck, for example, whose diagnosis includes autism, cerebral palsy and mild mental retardation. Over two years, she made no progress in public schools. Thanks to a scholarship, Lexie attends the private Chrysalis Academy where she has learned to communicate with her mom and sisters through sign language. Thanks to daily speech therapy, Lexie’s teachers expect her to speak for the first time this year. Without the scholarship, Lexie’s mom, Andrea, could not afford Chrysalis. Lexie would have to return to a public school where she would receive group speech therapy a few times each week. Lexie would lose her best chance to become verbal.

“Why do the teachers’ unions want to stop Lexie’s growth?” asked Andrea. “All I want is the freedom to place my daughter in precisely the same school where public school officials already place children so that Lexie can flourish. Half of the students enrolled at Chrysalis rely on the challenged scholarships, but public school officials placed the other half at the school. If there is nothing wrong with school districts choosing private schools for children with disabilities, then how can allowing parents like me to make the same choice be illegal?”

In Arizona and across the nation, school choice is empowering parents like Andrea Weck to have a real say in their children’s educational futures. The Arizona Supreme Court should vindicate that right and put to rest the shameful legal campaign of school choice opponents by rejecting the teachers’ unions’ spurious legal claims..

Tim Keller is the IJ Arizona Chapter executive director.

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