By Tim Keller

Children with disabilities and children in foster care are down, but not out, after a May 2008 Arizona Court of Appeals decision dealt a blow to two state-funded private school scholarship programs for these vulnerable students.

The appeals court ruled that the programs violate one of the Arizona Constitution’s Blaine Amendments, which prohibits appropriations “in aid of any church, or private or sectarian school, or any public service corporation.” The ruling is a radical departure from Arizona’s Constitution and history. Not only has the Arizona Supreme Court recognized Blaine Amendments as “a clear manifestation of religious bigotry,” but the Court of Appeals overlooked a crucial fact: The legislature did not create the scholarships programs “in aid of” private schools but rather “in aid of” families.

Thus, we are optimistic the Arizona Supreme Court will review the case and ultimately uphold the programs. The Supreme Court applies the “true beneficiary” test to determine whether a program is “in aid of” private or sectarian schools. Applying that test in another educational aid case, the court said that tax-credit funded scholarships primarily benefit “parents who might otherwise be deprived of an opportunity to make meaningful decisions about their children’s educations, and the students themselves.”

As the Supreme Court’s prior precedents recognize, public funds used to purchase goods or services from private institutions are not appropriations “in aid of” the private institutions. This is why public schools are able to contract with private schools to educate children with disabilities, as they routinely do under a program identical in every relevant respect to the challenged programs but one: The school choice programs give parents—rather than government officials—the power to place children in private schools.

In addition to appealing the ruling, IJ asked the Supreme Court to allow funding for the programs to continue while the case is on appeal. The Court granted IJ’s request, but the parents suffered another blow when the Legislature failed to appropriate any funds for the programs for the next fiscal year. Fortunately, the programs are still on the books, meaning that a favorable Supreme Court decision will clear the path for future legislatures to fund the programs.

In the meantime, many of Arizona’s School Tuition Organizations are stepping into the breach to try to raise private donations to help the hundreds of parents relying on the scholarships—parents like Tana Stephens, whose son Ryan had a stroke before he was born. Ryan’s diagnoses include cerebral palsy, epilepsy and autism. He survived two brain surgeries that took his right frontal lobe in order to ease his seizures. Ryan bounced between four public schools in three school districts and not one was able to meet his needs.

Thanks to the disability scholarship program, Ryan now attends the Graysmark Academy, where he has accomplished more than doctors, psychologists and public school teachers thought he could because, according to Tana, “The teachers at Graysmark take the time to truly learn, both about Ryan’s disabilities and his abilities.” Unless private donors step up to help raise money, children like Ryan may be forced to leave their private schools before we get a final ruling from the Supreme Court. Tana says that if Ryan has to return to the public schools he “honestly does not have a chance.”

IJ will continue the legal battle so that every special needs and foster child has a chance to learn and succeed.

Tim Keller is executive director of the Institute for Justice Arizona Chapter.