A lawsuit filed Nov. 14 on behalf of individual Arizonans and two national groups is challenging a pair of private school voucher programs approved by the Legislature, saying they unconstitutionally give tax money to private schools.
“Vouchers drain money from public schools that don’t have enough as it is,” Scott Holcomb, one of the challengers, said. “These statutes would open the door to wholesale funding of private education with public dollars.”
The suit, filed in the Arizona Supreme Court, names as defendants Superintendent of Public Instruction Tom Horne and state Treasurer David Petersen.
Besides Mr. Holcomb, the challenge was also brought by Virgel Cain, Sandy Bahr, the ACLU of Arizona and People for the American Way. An assortment of school- and teachers groups has also voiced their support for the lawsuit.
The lawsuit cites Article IX, Section 10 of the state Constitution, which prohibits the use of public funds “in aid of… any private or sectarian school.” Another section of the Constitution also says that “no public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction.”
In June, the two voucher programs were created after being approved by the Legislature and the governor. S1164 (Laws 2006, Chapter 358) provides $2.5 million of general fund money for vouchers for students in the foster care system. Likewise, H2676 gives $2.5 million for students with physical, emotional or learning disabilities to attend private schools.
Lawmaker: Desperate move by anti-school-choice forces
Rep. Rick Murphy, R-9, sponsored the strike-everything amendment that was attached to S1164 and created the program for foster kids. He says the court already said voucher programs are legal in 1999, when it ruled on the Kotterman v. Killian case. Because the parents will make the ultimate choice where the students attend school, not the government, Mr. Murphy says it doesn’t matter whether the voucher money passes through the state’s hands.
“I really think that this is a desperate attempt by anti-school-choice forces to [avoid] any competition in the marketplace,” he said.
The vouchers are especially important for kids who have been in the foster system, Mr. Murphy says, because studies have shown for decades that those children consistently perform poorly in school, even once they are removed from foster care programs.
“I personally think it’s unconstitutional to not give these kids another option and leave them where they are,” he said. “To condemn these children to a life of mediocrity, or worse, simply because people don’t want to allow them school choice is selfish.”
Though he has adopted two children from the foster care system, Mr. Murphy says he does not intend on taking advantage of the voucher program.
The Institute for Justice, a national Libertarian watchdog organization, said it will intervene in the case in support of parents who benefit from the vouchers.
“We will vigorously defend both programs and work to vindicate the rights of parents to secure a quality education that meets their children’s needs,” said Tim Keller, executive director of the group’s Arizona chapter.
The suit places Mr. Horne in an awkward position, as he opposed proposed voucher programs when he was a legislator.
“In the past, I’ve thought they were unconstitutional,” he said, adding that he voted against several as a lawmaker.
He says he hasn’t analyzed these particular programs — that’s the attorney general’s job, he said — but says they are different than another private-school-scholarship program passed by lawmakers last session that is also being challenged as unconstitutional.
While the corporate tuition tax credit program allows businesses to donate a portion of their tax liability to provide low income kids scholarships to private schools, Mr. Horne says that money is not state funding because it is never paid as taxes. These vouchers, though, use money directly from the state’s general fund, he said.