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Court ruled vouchers violated ban on aid to private schools

From left, Sen. Russell Pearce, Attorney General Tom Horne and Gov. Jan Brewer hold a news conference to announce the state's decision to appeal to the United States Supreme Court by July 11, a decision by a lower court that put the most controversial parts of the state's immigration enforcement law on hold, Monday, May 9, 2011, in Phoenix. (AP Photo/The Arizona Republic, Michael Schennum)

From left, Sen. Russell Pearce, Attorney General Tom Horne and Gov. Jan Brewer hold a news conference to announce the state's decision to appeal to the United States Supreme Court by July 11, a decision by a lower court that put the most controversial parts of the state's immigration enforcement law on hold, Monday, May 9, 2011, in Phoenix. (AP Photo/The Arizona Republic, Michael Schennum)

Arizona’s years-long crusade to lead the nation in school choice policies hit perhaps its greatest roadblock in 2009, when the Arizona Supreme Court ruled that a limited voucher program violated a constitutional ban on providing state money to private or sectarian schools.

In its unanimous decision in Cain v. Horne, the court ruled that the program for disabled students and foster children violated Article 9, Section 10 of the Arizona Constitution — known as the Aid Clause — which states, “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.”

Proponents of the voucher program defended it under the “true beneficiary” theory, arguing that, although the money ultimately made its way to sectarian schools, it was the parents and students who were the true recipients of the aid.

The court, however, didn’t see it that way.

“These programs transfer state funds directly from the state treasury to private schools. That the checks or warrants first pass through the hands of parents is immaterial,” Justice Michael Ryan wrote in the court’s opinion.

Supporters of the voucher programs, including then-Superintendent of Public Instruction Tom Horne, argued that the court should interpret the Aid Clause in the same way the U.S. Supreme Court interpreted the Establishment Clause in the U.S. Constitution. The federal courts have ruled that school voucher programs are constitutional because parents have a genuine choice in whether they want to take part in the programs.

The Arizona Court of Appeals ruled that the voucher program didn’t violate the Religion Clause — the Arizona Constitution’s equivalent to the federal Establishment Clause — and the state Supreme Court did not rule on the issue. But both the Arizona Supreme Court and Court of Appeals ruled the program violated the Aid Clause, which has no equivalent in the U.S. Constitution.

Horne argued that the court should interpret both clauses in a similar way, as was done in its 1999 decision in Kotterman v. Killian, which upheld a state program that allows people to claim income tax credits for donations to groups that fund private school tuition scholarships. In that case, the court ruled that the tax credits did not violate either clause because the system did not actually appropriate state money.

But in Cain v. Horne, the court said the Aid Clause and Religion Clause are not mirror images of each.

“The text of the Aid Clause encompasses more than does the Religion Clause,” Ryan wrote.

Less than 500 students were enrolled in private schools under the voucher programs at the time of the 2009 ruling. Each program had a $2.5 million cap established by the Legislature in 2006 when the programs were approved.

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