Voucher Opponents Seek Last-Ditch Relief from Arizona Supreme Court

Opponents of school choice in Arizona have continued their efforts to block a voucher program that requires the state to provide funds to poor and middle-class families to help them pay private school tuition. The Arizona Court of Appeals earlier this month ruled in a favor of the school voucher program, but the issue isn’t settled yet.

The Arizona Education Association and the Arizona School Boards Association are challenging the school voucher program, known as Empowerment Scholarship Accounts (ESA). Attorney Don Peters, who represents both associations, on October 18th asked the Arizona Supreme Court to consider the school voucher program is an unconstitutional aid to private and parochial schools, according to Howard Fischer of East Valley Tribune.

In a lawsuit filed with the Arizona Court of Appeals, the Arizona Education Association, the Arizona School Boards Association and others alleged that the voucher program violates the state constitutional provision barring public funds from being used for religious worship or instruction. The court rejected these arguments in a unanimous ruling.

According to Peters, allowing parents to use state dollars to send their children to parochial schools violates a separate constitutional ban on using public dollars for religious worship or instruction. Peters said he has reason to hope for a different result at the state’s high court.

Peters said in a legal filing that approving the voucher program will affect more than just the students now eligible for the vouchers — those with special needs and any child attending a school rated D or F by the state Board of Education.

Peters said the Goldwater Institute, which has promoted and defended the law, wants to create a statewide program that would give all of Arizona’s 1.1 million public school students a chance to use tax dollars to attend private or parochial schools, leaving public schools with only the money appropriated for any students who wish to remain in the system.

“If public education could thus be completely transformed into a matter of decentralized, private choice, virtually all constitutional requirements for public education would be effectively nullified,” Peters wrote.

However, the Goldwater Institute has rejected these concerns. Clint Bolick, an attorney for the Goldwater Institute, said fears are unfounded.

“The constitutional requirement demands the Legislature provide public schools for all kids who want them,” he said, even if that turns out to be a minority of school-age children. “And that requirement is never going to go away.”

Bolick said giving funds to students to attend private and parochial schools does not offend other constitutional provisions. Under the law, the state treasurer is required to set up a special account that parents can draw from to pay tuition and fees for their children at private or parochial schools or for other educational instruction.

Peters disputed the appellate court’s conclusion that vouchers do not amount to state dollars being used for religious instruction or worship because it involves what the judges called “the genuine and independent private choice of parents.” He said that ignores the reality of what happens.