IJ Scores Victory Against School Choice Opponents

February 1, 2007

By Tim Keller

School choice supporters started the New Year with a first-round victory against a lawsuit that demonstrates how desperate school choice opponents are to halt meaningful education reform.

IJ Arizona Chapter Executive Director Tim Keller (left) with clients Jessie Geroux and Phillip Collins meet in front of the Arizona Supreme Court where IJ recently won an important school choice victory for foster care children and children with disabilities.

This past November, the American Civil Liberties Union of Arizona (ACLU-AZ) and People for the American Way (PFAW) filed the first-ever legal challenge to a scholarship program that provides tuition grants for children with disabilities.  There are four similar programs nationwide, and the others have flourished without legal challenge.  In the same suit, opponents also sought to end the nation’s first scholarship program designed to provide educational stability for children in foster care.

The lawsuit asked the Arizona Supreme Court to accept “original jurisdiction” over the case, thereby bypassing all lower courts.

The Institute for Justice successfully intervened in the case in December and argued that the case should be filed first in the state’s trial court so our clients—five scholarship-eligible families—would have the opportunity to be heard fully with regard to the two programs’ merits.  On January 9, the Arizona Supreme Court declined to hear the case.

Andrea Weck and her three daughters are typical of the families we represent.  Lexie and Charlie are Andrea’s twin five-year-old girls.  Their four-year-old sister Samantha rounds out their loving household.  Lexie has cerebral palsy, autism and mental retardation and has been receiving professional services and therapies since she was an infant.

Lexie currently attends the Chrysalis Academy, a private school where she is flourishing, and she receives a scholarship to help pay the way.  Andrea has a difficult time understanding how the ACLU-AZ and PFAW could oppose a scholarship program that promises to help children with disabilities.

Andrea first enrolled Lexie in a special pre-kindergarten program in the Scottsdale Unified School District, known as the Panda Program.  Andrea hoped that through the program, Lexie would begin interacting and playing with her two sisters.  Andrea also wanted to see Lexie make educational gains, such as learning the alphabet.  After two years in Panda, though, Lexie had made very little improvement.  Her teachers and therapists did not know where she should go to kindergarten.

Andrea began searching for options and found Chrysalis with its unique play-based curriculum.  Lexie started at Chrysalis this past August, though Andrea had no idea how she would ever pay the tuition.  Her parents dipped into savings, and Andrea made sacrifices wherever possible.  Today, Lexie is a different little girl.  She can point to the letters of the alphabet, she is learning sign language, and she now engages her sisters, especially when they are playing the types of games that Lexie does at her school.

And to top off Lexie’s advancement, the Legislature and the Governor created a scholarship program to help pay the tuition for children like Lexie to attend schools like Chrysalis.

IJ Arizona Chapter client and mom Jessie Geroux with son Tyler.

But the ACLU-AZ and PFAW didn’t like the fact that parents had been empowered to choose private schools.  The ACLU-AZ and PFAW claimed that the new scholarship programs violated the Arizona Constitution because they allow public funds to pay for educating children in private schools.  They cited both the Arizona Constitution’s Blaine Amendments and its education provisions.  Not only has the Arizona Supreme Court rejected those arguments in school choice and school finance cases, but, as IJ’s Director of Strategic Research Dick Carpenter demonstrates in his new report, Private Choice in Public Programs:  How Private Institutions Secure Social Services for Arizonans (available at www.ij.org/publications/other), those arguments ignore Arizona’s long history of supporting private education with public aid.

As the report documents, Arizona already operates at least six separate educational aid programs that help students in public, private and religious schools.  And two of them specifically support services for foster children and children with disabilities.  Those six voucher programs currently serve more than 22,000 students a year, totaling nearly $22 million in publicly funded scholarships—far outstripping the $5 million allotted for the new scholarships for special needs and foster children.

These facts only further confounded Andrea, especially when she considers that there are nine other families attending Chrysalis using the “old” voucher.  Naturally, the old voucher program puts school districts and education bureaucrats in charge of private placements.  And because the ACLU-AZ and PFAW only challenged the parental choice program, only children like Lexie, whose parents chose the school, stood to lose their state-funded scholarships.

It is difficult to call school choice opponents’ selective legal challenge anything short of hypocritical.  But their hypocrisy is not surprising. The teachers’ unions’ allies fear the accountability that naturally accompanies parental choice programs and the pressure to enact genuine reforms that follows empowered parents.

This legal challenge, perhaps more than any previous school choice lawsuit, demonstrated that what choice opponents truly fear is empowering parents.  There is a high likelihood that the ACLU-AZ and PFAW will file a new lawsuit in the lower courts.  But with the help of the Institute for Justice, Arizona families will continue to fight to protect their right to choose the school that is best suited to meet their children’s needs.

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

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