IJ & Arizona Parents Step In Again To Defend Scholarships for Disabled and Foster Children

J. Justin Wilson
J. Justin Wilson · March 13, 2007

Arlington, Va.—Six Arizona families, represented by the Institute for Justice and its Arizona Chapter, filed papers today to intervene in defense of the state’s school choice programs for special needs and foster children.

IJ and the families also asked the Maricopa County Superior Court to refuse opponents’ request for a preliminary injunction—which would halt both programs and take away scholarships that parents of children with special needs are currently relying on—and to dismiss outright opponents’ legal challenge as baseless under the Arizona Constitution.

“It is appalling that school choice opponents are not only continuing their legal campaign against special needs and foster children with a second baseless lawsuit, they are also trying to take away scholarships before the case has been fully argued,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter. “Fortunately, Arizona law is on the side of parents and children, and we are confident the courts will preserve both scholarship programs and uphold them as constitutional.”

The ACLU Foundation of Arizona and People for the American Way first challenged the programs in November, asking the Arizona Supreme Court to bypass the trial court and take the case directly. In January, the court refused. IJ also intervened to defend parents in that case. Opponents, joined by the Arizona Education Association, filed a second lawsuit on February 20.

Arizona’s new Scholarships for Pupils with Disabilities Program began last fall. Private schools are currently registering to accept students through the Displaced Pupils Choice Grant Program, and foster children can begin using scholarships this fall. Each program is capped at $2.5 million.

Thanks to the program for children with disabilities, IJ client Andrea Weck can afford to send her five-year-old daughter Lexie to Chrysalis Academy, a school that specializes in educating children with autism and related disorders. Previously, Lexie struggled academically and socially in public school.

“We feel truly blessed she was accepted into the program,” Andrea said. “In only her first week being there, the school opened up a whole new world to Lexie through sign language and pictures. Her progress has surpassed our greatest expectations. Lexie has made incredible leaps in academic ability.”

Like the first challenge to the new school choice programs, this lawsuit relies on recycled claims already rejected by the Arizona Supreme Court. The state’s highest court first ruled on school choice in 1999 when it upheld individual tax credits for donations to scholarship granting organizations. In Kotterman v. Killian, the court wrote that because school choice aids students, and not the schools they happen to choose, religious or non-religious, it does not violate the state Constitution’s Blaine Amendments. Because parents do the choosing, not the government, there is no unconstitutional aid to religion. The court also recognized the Blaine Amendments as remnants of 19th-century anti-Catholic and anti-immigrant prejudice.

In the same case, the court reaffirmed that the Arizona Constitution permits the inclusion of private schools in the “mix of educational opportunities” available to schoolchildren. Not once has the Arizona Supreme Court said the state Constitution’s education article prohibits additional educational options, despite reviewing such cases.

Indeed, Arizona has paid for special need students to attend private schools for years through state and federal programs. The only difference between those programs and the new scholarships is that bureaucrats decide when a private school is appropriate, instead of parents. The new program simply removes bureaucratic red tape and puts parents in control.

Moreover, 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 six voucher programs serve more than 22,000 students a year, totaling nearly $22 million in publicly funded scholarships. The report is available here.

The Honorable Thomas A. Zlaket, former Chief Justice of the Arizona Supreme Court and author of Kotterman, joined the Institute for Justice as of counsel in defense of the scholarships.

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, 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.