Constitutional Provisions

Blaine Amendments

“No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” Arizona Const. Art. II, § 12. “No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.” Arizona Const. Art. IX, § 10.

Other Relevant Sections

“Neither the State, nor any county, city, town, municipality, or other subdivision of the state shall ever give or loan its credit in the aid of, or make any donation or grant, by subsidy or otherwise, to any individual, association, or corporation ….” Arizona Const. Art. IX, § 7.

“The legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system, which system shall include: 1. Kindergarten schools; 2. Common schools; 3. High schools; 4. Normal schools; 5. Industrial schools; 6. Universities, which shall include an agricultural college, a school of mines, and such other technical schools as may be essential, until such time as it may be deemed advisable to establish separate state institutions of such character.” Arizona Const. Art. XI, § 1. A.

Vouchers: Yes

Tax Credits: Yes

Existing Private School Choice Programs

Individual Tax Credit Scholarships
Arizona Revised Statutes Sections 43-1089 to 43-1089.02

Corporate Tax Credit Scholarships
Arizona Revised Statutes Section 43-1183

Lexie’s Law for Disabled and Displaced Students Tax Credit Scholarship Program
Arizona Revised Statutes Sections 15-891, 43-1184, 43-1501 to -1507, 20-224.07

The Empowerment Scholarship Account
Arizona Revised Statutes Sections 15-2401 to -2404

“Switcher” Individual Income Tax Credit Scholarship Program
Arizona Revised Statutes Section 43-1089.03

Relevant Case Law

Arizona Christian School Tuition Organization v. Winn, 563 U.S. 125 (2011)
Plaintiffs challenged the Arizona tax-credit scholarship program under the federal Establishment Clause, arguing that they had standing as taxpayers who would be injured by the increase in government spending from the program. However, the U.S. Supreme Court found that the taxpayers did not have standing because they did not fall under the exception to the rule against taxpayer standing for claims of spending tax money in violation of the Establishment Clause. Furthermore, the Court held that the plaintiffs did not meet the causation and redressability requirements for standing because the tax credit was not a government expenditure and the program was implemented by private action, not state action.

Niehaus v. Huppenthal, 310 P.3d 983 (Ariz. Ct. App. 2013)
The Arizona Court of Appeals found that the Empowerment Scholarship Account program did not violate the Arizona Religion Clause (Article II, Section 12) because the program was neutral toward religion. In addition, the program did not violate the state’s Aid Clause (Article IX, Section 10) because, unlike in Cain v. Horne, the funds in the account could be used for many types of educational services.

Green v. Garriott, 212 P.3d 96 (Ariz. Ct. App. 2009)
On appeal, the Arizona Court of Appeals held that the Corporate Tax Credit Scholarships program did not violate the federal Establishment Clause because it (1) had a valid, secular purpose and was neutral toward religion; (2) permitted parents and students to exercise free choice among various secular and religious educational options; and (3) did not create excessive government entanglement with religion.

Cain v. Horne, 202 P.3d 1178 (Ariz. 2009) (en banc)
The Arizona Supreme Court found that two voucher programs—one for children with special needs and another for children in foster care—were constitutional under Arizona’s Religion Clause (Article II, Section 12) because of the clause’s similarity to the federal Establishment Clause, but held that the voucher programs violated the state’s Aid Clause (Article IX, Section 10) for two reasons. First, the Court stated that the funds could only be used for private schools and, second, it rejected the defendants’ view that the voucher programs aided students rather than private schools.

Zobrest v. Catalina Foothills School District, 509 U.S. 1 (1993)
The U.S. Supreme Court held that the First Amendment’s Establishment Clause did not prevent an Arizona school district from furnishing a student with a sign-language interpreter to facilitate his education at a religious school.

Kotterman v. Killian, 972 P.2d 606 (Ariz.), cert. denied, 528 U.S. 921 (1999)
The Arizona Supreme Court held that tuition tax credits are constitutional under both the U.S. Constitution and the Arizona Constitution. They are part of a religiously neutral government program available to a large spectrum of citizens and do not have the primary effect of advancing or inhibiting religion. Additionally, they do not overly entangle the government with religion because the state does not distribute funds or monitor their application. The Court recognized that the scholarships benefit children, not schools. In refusing to apply the state constitution’s Blaine Amendments broadly, the Arizona Supreme Court recognized the bigotry and prejudice underlying their enactment.

Hull v. Albrecht, 950 P.2d 1141, 1145 (Ariz. 1997)
The Arizona Supreme Court held that the “general and uniform requirement” of the Arizona Constitution’s education article applies only to the state’s constitutional obligation to fund a public school system that is adequate and that defining adequacy is a legislative task. A district may then choose to go above, but not below, the statewide minimum standards, and doing so will not run afoul of the general-anduniform requirement.

Pratt v. Arizona Board of Regents, 520 P.2d 514, 516 (Ariz. 1974)
The Arizona Supreme Court held that the state did not violate the first of Arizona’s Blaine Amendments (Article II, Section 12) when it leased a state university’s football stadium for prayer worship at a fair market value. The Court noted, “We believe that the framers of the Arizona Constitution intended by [Article II, Section 12] to prohibit the use of the power and the prestige of the State or any of its agencies for the support or favor of one religion over another, or of religion over nonreligion.”

Community Council v. Jordan, 432 P.2d 460, 466 (Ariz. 1967)
The Arizona Supreme Court held that, by contracting with the Salvation Army, the state is not providing “aid” in violation of the second of Arizona’s Blaine Amendments (Article IX, Section 10). The Court noted, “The ‘aid’ prohibited in the constitution of this state is, in our opinion, assistance in any form whatsoever which would encourage or tend to encourage the preference of one religion over another, or religion per se over no religion.”

Analysis and Recommendations

Both tax credit programs and Educational Savings Accounts are school choice options for Arizona, but traditional vouchers are not. The Arizona Supreme Court interpreted Article IX, Section 10 expansively in Cain v. Horne when it struck down a voucher program. However, that Court let stand a Court of Appeals decision (Niehaus v. Huppenthal) upholding the Empowerment Scholarship Account program.

Model Legislation: Education Savings Account, Parental Choice Scholarship Program (Universal Eligibility), Parental Choice Scholarship Program (MeansTested Eligibility), Special Needs Scholarship Program, Foster Child Scholarship Program, Autism Scholarship, Great Schools Tax Credit Program, Family Education Tax Credit Program

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