Arlington, Va.—Five Arizona families are stepping up to fight the first-ever legal challenge filed against school choice programs for special needs and foster children. Represented by the Institute for Justice and its Arizona Chapter, the parents filed papers today in the Arizona Supreme Court asking to intervene in defense of the programs and urging the court to either require the case be filed in trial court, where a full factual record about the programs can be developed, or uphold the programs as consistent with the Arizona Constitution.

“Parents should be free to choose the education environment that is best for their child,” said Jessica Geroux of Apache Junction, Ariz. Jessica’s six-year-old son Tyler has been diagnosed with autism. Jessica has worked closely with staff at his current public school, but is learning that it is difficult to find just the right educational environment for a child with Tyler’s particular combination of autism and giftedness. Jessica hopes to move him to a public or private school that will better meet his needs, but that has turned out to be challenging.

“Sadly, under current state and federal law, there is a tremendous amount of bureaucratic red tape involved with transferring a child with a disability even from one public school district to another,” Jessica said, and private school tuition is often out-of-reach financially for parents of children with disabilities.

Similarly, Shirley and Mike Okamura care for their four grandchildren through Arizona’s foster care system. After years of watching the children struggle in the public schools, the Okamuras moved them to a private school. But every year, they fear they cannot continue to pay the tuition.

Arizona’s new Scholarships for Pupils with Disabilities Program and Displaced Pupils Choice Grant Program, each capped at $2.5 million, will help families all across Arizona just like the Geroux and Okamura families secure educational environments that meet their children’s unique needs.

That is, unless the lawsuit filed last month by the ACLU Foundation of Arizona and the People for the American Way succeeds in striking down the programs. Opponents filed an original action with the Arizona Supreme Court, seeking to bypass the trial court.

The lawsuit relies on recycled legal claims that the Arizona Supreme Court has already rejected and that are inconsistent with the State’s longstanding history of offering educational alternatives for K-12 and college education, including private schools. Three other states, Florida, Utah and Ohio, provide scholarships to more than 16,000 special needs children—and none of those programs have been subject to legal challenge.

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.

Arizona is the first state to offer school choice to foster children, a population at high-risk for falling through the educational cracks. Children in foster care are twice as likely to drop out of high school before graduation and are far more likely to attend an under-performing school than other children.

“Arizona’s Constitution and educational history are very favorable to school choice,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter. “This unprecedented lawsuit should not succeed in blocking parents of special needs and foster children from schools that will meet their children’s needs.”

Both programs are consistent with the Arizona Constitution, and do not violate the state’s Blaine Amendments. In upholding Arizona’s individual tax credit for donations to scholarship organizations in 1999 in Kotterman v. Killian, the Arizona Supreme Court understood that school choice programs aid parents—not schools, religious or otherwise. And the court recognized the Blaine Amendments as a “clear manifestation of religious bigotry” and refused to strike down school choice on that basis.

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.

The new scholarship programs are also in harmony with the Arizona Constitution’s education article, which provides for public K-12 schools and universities. Not once has the Arizona Supreme Court said this article prohibits additional educational options, despite reviewing such cases, and Arizona does in fact support some K-12 and college students in private school. In Kotterman, the court noted that including private schools in the mix of educational options furthers the objective of “making quality education available to all children.”

With this claim, opponents hope to capitalize on an unfortunate state court decision striking down a Florida school choice program under that state’s education article. But Arizona’s constitutional and educational history embraces educational alternatives. And school choice opponents have tried this claim three other times—challenging school choice in Milwaukee and Cleveland and charter schools in Ohio—and lost.

“School choice is gaining ground in Arizona and nationwide because it works,” said Chip Mellor, IJ president and general counsel. “But nearly every advance for educational freedom is met with litigation by those who prefer the status quo. We will not let opponents thwart meaningful educational opportunities for Arizona children whose unique needs cry out for help.”

IJ, the nation’s leading legal advocate for school choice, is currently defending Arizona’s new corporate tax credit scholarships in state court and the individual tax credit scholarships program in federal court. IJ helped secure the Kotterman victory for school choice in Arizona. The Institute also helped win a victory in the U.S. Supreme Court for school choice, representing parents in Cleveland’s school choice program, and successfully defended vouchers in Milwaukee and tax credits in Illinois.