Arizona Supreme Court to Decide Future Of Scholarships for Special Needs and Foster Children

J. Justin Wilson
J. Justin Wilson · October 28, 2008

Phoenix—The educational futures of hundreds of special needs and foster children are now before the Arizona Supreme Court, as the court today agreed to decide the constitutionality of state scholarship programs that help those children attend the public or private school of their parents’ choice. The court granted petitions for review seeking to overturn a lower court ruling that had struck down the scholarships.

“This provides a ray of hope for the hundreds of children relying on these scholarships for a quality education,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter, which represents families using the scholarships and is defending the programs in court. “The lower court got it wrong on both the law and the facts when it struck down Arizona’s innovative school choice programs, and now the Arizona Supreme Court has a chance to set the record straight. The court and the Arizona Constitution have always looked favorably upon school choice programs.”

Signed into law in 2006 by Gov. Janet Napolitano, the Scholarships for Pupils with Disabilities Program and the Displaced Pupils Grant Program served nearly 300 children during the 2007-08 academic year. The Arizona Education Association, the ACLU of Arizona and the People for the American Way, among others, challenged the programs in January 2007.

“Thanks to the choice that these scholarships gave me, Lexie is a different little girl,” said IJ client and mom Andrea Weck. Thanks to a scholarship, Andrea’s daughter Lexie, diagnosed with autism, cerebral palsy and mild mental retardation, has thrived at the Chrysalis Academy. “Lexie has learned to communicate with me and her sisters through sign language, and thanks to the daily speech therapy she receives at Chrysalis, this year we expect her to speak for the very first time.”

Andrea enrolled Lexie in the Chrysalis Academy after officials at her public school admitted they did not know how to meet her educational needs. Without the scholarship, Andrea, a single mother with two other girls, would not be able to afford the tuition. About half of the students enrolled at Chyrsalis rely on the scholarships, while most of the other students also have their private school tuition paid with state funds through a separate program. In that program, public school officials—not parents—decide whether a school like Chrysalis is best for a child. Teachers’ unions and other school choice opponents have only challenged the scholarship program that enables parents to choose a school.

Indeed, school choice is nothing new to Arizona. Even before Arizona adopted the scholarships for special needs and foster children, the state already operated at least six separate educational aid programs for students in public, private and religious schools—just like the challenged programs. And two of them support children in foster care and students with disabilities.

“Public school officials place students in private schools every day and use public funds to pay the tuition at those private schools,” explained Keller. “Parents like Andrea just want to be able to exercise the same educational choices for their children that are already available to government bureaucrats.”

In June 2007, the Maricopa County Superior Court upheld the scholarship programs, but earlier this year the Arizona Court of Appeals overturned that ruling. The appellate court found the scholarships in violation of the Arizona Constitution’s prohibition on funding “in aid of” private schools.

However, the Arizona Supreme Court has long held that programs are not “in aid of” churches or private schools so long as those institutions are not the “primary beneficiary.” And, in the landmark case Kotterman v. Killian, the court upheld a school choice program and said in no uncertain terms that families and students primarily benefit from educational aid programs, not schools.

“As the Arizona Supreme Court has long held, educational aid programs are ‘in aid of’ parents and children, not schools,” Keller explained. “Food stamps don’t ‘aid’ grocery stores, they help people buy food—just as these scholarships help parents buy an education suited to their children’s needs.”

“In Arizona and across the nation, school choice is delivering on the promise of a quality education,” said Chip Mellor, IJ’s president and general counsel. “The Arizona Supreme Court has a prime opportunity to vindicate that promise and put to rest the shameful legal campaign of school choice opponents.”

The Supreme Court ordered parties in the case to file supplemental briefing and also ordered the Clerk of the Court to set a date for oral argument.