Arizona Appeals Court to Hear Challenge To Scholarships for Special Needs and Foster Children

J. Justin Wilson
J. Justin Wilson · April 21, 2008

Phoenix—The fate of two Arizona programs that provide educational opportunities to special needs and foster children will be on the line this Wednesday, April 23, as the state Court of Appeals in Tucson hears oral argument in a legal challenge to the programs. Opponents are asking the court to overturn a lower court ruling upholding the scholarship programs under the Arizona Constitution.

“These scholarships offer hope for stability and hope for specialized instruction to two of Arizona’s most vulnerable classes of children,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter, which represents families defending the program. “Fortunately, as the lower court ruled, the Arizona Constitution and state Supreme Court precedent are on the side of the kids.”

The scholarships have been a tremendous help to Andrea Weck, a single mom living in Scottsdale, Ariz., and raising three little girls, including six-year-old Lexie who has been diagnosed with autism, cerebral palsy and mild mental retardation. Lexie was making few academic gains and virtually no social progress in her public school. But she is now thriving at the Chrysalis Academy, a private school that specializes in educating children with autism and related disabilities.

“Lexie’s progress has surpassed our greatest expectations,” said Andrea. “She has made incredible leaps in academic ability, learning to point and properly pick out the letters of the alphabet, and she is interacting more than ever with her two sisters. She is a different little girl.”

Lexie’s experience also underscores a major flaw in opponents’ legal argument that state funds cannot be used in private schools. Nearly all of her classmates are supported by state funds. Lexie and 13 others attend Chrysalis thanks to the scholarships, but another 12 students were placed at the school by public school officials who felt that Chrysalis offered the best learning environment for the children’s needs. Such “public placements” of special needs children in private schools with state funds has long been common in Arizona. The new scholarships simply give parents like Andrea the right to make that same choice for their own children.

“School choice opponents only object when parents have the power to choose instead of bureaucrats, but the Arizona Constitution draws no such distinction,” said Keller. “It would be perverse if our state Constitution gave bureaucrats more power over educational decisions than parents.”

Contrary to opponents’ claims, Arizona has a long history of offering educational alternatives for K-12 and college education, including the use of public funds to pay for private education. Indeed, the state has no less than six other publicly funded educational aid programs that help students in public, private and religious schools. (See “Private Choice in Public Programs: How Private Institutions Secure Social Services for Arizonans,” available at

Those other programs serve more than 22,000 students and cost nearly $22 million. In contrast, the cost of Arizona’s Scholarships for Pupils with Disabilities Programs and Displaced Pupils Choice Grant Program is capped at $5 million, a rather modest addition to Arizona’s long-standing and sensible policy of providing education services through neutral, choice-based programs for those most in need.

“Arizona’s new scholarship programs have expanded the range of options available to families whose children have special education needs and opened doors that have been closed for too long,” said Jessica Geroux of Apache Junction, Ariz. Jessica’s seven-year-old son Tyler has been diagnosed with autism. “A student’s needs should dictate his or her educational placement, not arbitrary school district boundary lines or bureaucrats sitting behind a desk.”

The lawsuit filed by school choice opponents, including the Arizona Education Association and the ACLU Foundation of Arizona, merely recycles legal arguments already rejected by the Arizona Supreme Court.

In Kotterman v. Killian in 1999, the court upheld individual tax credits for donations to scholarship organizations, writing 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. Because parents do the choosing, not the government, there is no unconstitutional aid to religion. The court also reaffirmed that the Arizona Constitution permits the inclusion of private schools in the “mix of educational opportunities” available to schoolchildren.

The court will hear arguments in Cain v. Horne at 1 p.m. on Wednesday, April 23, on the third floor of the State Office Complex, 400 West Congress Street, North Building, Tucson, Ariz.

IJ, the nation’s leading legal advocate for school choice, is currently defending Arizona’s corporate tax credit scholarship program in state court and the individual tax credit scholarship 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.