The American Civil Liberties Union of Arizona and a host of school and teacher organizations asked a Maricopa County Superior Court judge on June 4 to temporarily allow two school voucher programs to remain in place so the Legislature has ample time to create alternative programs.
Attorney Don Peters asked Judge Bethany Hicks to issue an injunction against the vouchers for foster children and special needs students with a delayed effect of 100-120 days to allow the Legislature to create laws allowing private schools to be contracted by public schools to educate certain students.
There was no indication when the judge would rule.
The practice is already in place for some disabled students, although parents complain the sign-up process is exceedingly cumbersome, he said, adding there is a lot the Legislature can do besides “just paying the tuition.”
A streamlined application process for parents and allowing the public school system to contract with private schools while preventing money from being used to espouse religious beliefs would be proper, Peters said.
The delay is intended to avoid disrupting the lives of needy children, said Peters.
“We understand that some parents and children have relied on these programs in good faith,” he said. “No one wants to see them hurt.”
The move for a delayed injunction by the school voucher opponents is not entirely new. A previously dismissed petition to the Arizona Supreme Court called for “prospective relief” from the vouchers to begin with the 2008 fiscal year that begins July 1.
Assistant Attorney General Bill Richards, representing Superintendent of Public Instruction Tom Horne, said expanding the use of private schools as contractors isn’t needed because voucher programs have already been successfully defended numerous times in Arizona.
“As long as the state is not promoting or favoring a particular religion, it’s not necessary,” he said to Hicks.
The request for the delay was confusing since the ACLU and the teachers’ unions sought to stop the vouchers “in their tracks,” said Tim Keller, an intervening attorney defending the programs on behalf of six families in an interview with the Arizona Capitol Times.
“At arguments they apparently conceded to allowing the program to continue until the Legislature somehow changes it,” Keller says, “I presume with the goal of making sure all the parents can continue to send their kids to private school? I’m not sure exactly what it is they are arguing.”
Keller told Hicks that parents and not the state effectively make the decision to send their children — and the state money — to private religious schools so there is no conflict with the state Constitution.
Attorney: Arguments are ‘recycled’
The Institute for Justice, an advocacy law firm Keller directs, has issued numerous press releases blasting the decision to attack the voucher programs used by the “most vulnerable” as “appalling,” and he has labeled his opponents’ arguments as “recycled.”
In March, the Institute for Justice played a role defending a tax credit for corporations that donate to school tuition organizations that provide scholarships to students from low-to-moderate income families.
In her written decision, Judge Janet Barton said the corporate tuition tax credit program was “legally indistinguishable” from an individual tax credit program for private school scholarships that was upheld in 1999 by the Arizona Supreme Court in Kotterman v. Killian.
The challenge to that program also came from the ACLU of Arizona and the Arizona School Boards Association. Keller railed against that lawsuit, calling it the “most frivolous challenge to Arizona’s school choice programs to date.”
During the June 4 arguments, Hicks at one point asked Keller if there would be a problem if the appropriations for the foster children and special needs student vouchers would be redirected to improve special education programs in public schools.
“Nobody is better informed about the needs of children than their parents,” he said.
Alessandra Soler Meetze, executive director of the American Civil Liberties Union of Arizona, said her organization opposes vouchers because they sap money from the public school system and private religious schools can discriminate against students on the basis of religion or sex.
“They increase the opportunities for a select few to the detriment of the majority of students,” she said. “Some kids will receive the vouchers, but that does not solve the problem of public education in the state.”
Scholarships for Pupils with Disabilities Program and the Displaced Pupils Choice Grant Program were implemented last fall. The programs can each award up to $2.5 million in vouchers.
The challengers include the Arizona Association of School Business Officials, the Arizona Education Association, the Arizona Federation of Teacher Unions, the Arizona School Boards Association and the People for the American Way.