Arizona Supreme Court Confirms That Scholarships For Special Needs and Foster Children Should Continue, But Legislature Cuts Program Funds

J. Justin Wilson
J. Justin Wilson · June 30, 2008

Phoenix—The Arizona Supreme Court on Friday granted a motion filed by the Institute for Justice and its Arizona Chapter seeking to continue the state’s scholarships for special needs and foster children while a case challenging their constitutionality is on appeal. But in last week’s budget negotiations, the Legislature cut funding for both programs—leaving hundreds of parents who rely on the scholarships without any means to keep their children in the schools that are working for them.

“It is unfortunate and incredibly disappointing that just as the Arizona Supreme Court extended a lifeline to parents of special needs and foster children, the Legislature took it away,” said Tim Keller, executive director of the Institute for Justice Arizona Chapter, which represents families using the scholarships. “But we have every reason to hope that this setback will be temporary. These programs are still on the books, and they are completely consistent with Arizona’s Constitution and policy history. If the state’s highest court ultimately upholds the scholarships, the Legislature can and should support these families.”

Apparently, the scholarships fell victim to last-minute budget negotiations, even though at a total of $5 million, they represent a tiny fraction of the state’s $9.9 billion budget. Moreover, the special needs scholarships are set at the same amount the state paid to educate the children in public schools. And at an average $4,550, the scholarships for foster children are below the average per pupil costs in Arizona’s public schools. Therefore, if scholarship children return to public schools, the state could wind up spending more on their education.

Fortunately for the children using these scholarships, private organizations are already stepping up to provide support.

“We hope to fill the gap the Legislature has left by raising private funds to support children with special needs and foster children,” said Harry Miller, executive director of TOPS for Kids, an organization that accepts tax-credit donations to fund private school scholarships. “In fact, we are already hearing from families in need and call on Arizonans to support them in securing a good education for their children.”

Parents and potential donors can learn more about TOPS for Kids at

The Arizona Supreme Court on Friday also denied a motion for a stay filed by the state, reasoning that the appeals court that ruled against the programs did not enjoin or stop them from operating, so there was nothing to stay. The appeals court instead had remanded the case to the trial court, which, under Arizona law, has no jurisdiction to halt the programs as long as there is an appeal pending, and there is before the state’s highest court. However, the Supreme Court granted IJ’s motion on behalf of families to let the programs continue.