The Arizona Supreme Court on Oct. 28 agreed to hear an appeal of a case involving two school-voucher programs for developmentally disabled and foster children.
In May, the Arizona Court of Appeals ruled the voucher programs violated constitutional protections against using money to benefit religious organizations or private schools. The programs were created in 2006.
The vouchers were used by the parents of fewer than 500 students in Arizona, and each program was financially capped at $2.5 million.
The Arizona Education Association and the American Civil Liberties Union argued the programs rob funding intended for public schools and aid private religious schools that are free to discriminate.
Tim Keller, an attorney with the Institute for Justice who is representing five families receiving vouchers, said the high court’s decision to revisit the Appeals Court opinion “provides a ray of hope for the hundreds of families relying on the programs to get a better education.”
He maintains the programs benefit families – and not private religious organizations or schools – and are therefore constitutional. Keller said it is customary for education officials to direct students to private schools, which is a right his clients are seeking.
Following the Appeals Court ruling in May, the Arizona Supreme Court ordered the voucher programs to be continued for another year. However, during the 2008 legislative session, lawmakers and Gov. Janet Napolitano approved a state budget that did not include money for the programs.
Several lawmakers, including House Speaker Jim Weiers, R-10, said they were not aware that the fiscal year 2009 budget lacked the voucher funding. Officials supportive of vouchers scrambled to find money for the programs while the decision was being appealed, which led to a proposal by lawmakers to use a surplus fund controlled by the state House to pay for the vouchers.
But state Attorney General Terry Goddard advised lawmakers that surplus funds held by the House of Representatives could not be used to pay for the programs. Later, the state Department of Education decided to foot the bill.
In June 2007, Maricopa County Judge Bethany Hicks rejected a lawsuit against the voucher programs, which prompted opponents to take the case to the state Court of Appeals.
Hicks rejected opponents’ claims that the vouchers violate the state Constitution, relying on U.S. Supreme Court and Arizona Supreme Court precedent, including a 1999 case  Kotterman v. Killian that upheld Arizona’s first tax credit-scholarships program.
However, critics emerged victorious in their appeal to the Division II Court of Appeals in Tucson, where a three-judge panel in May supported the argument against vouchers.
Judge Garye L. Vasquez, writing for the panel, said the “plain language of our state Constitution requires us to agree” that the programs are unconstitutional.
“Only by ignoring the plain text of the Arizona Constitution prohibiting state aid to private schools could we find the aid represented by the payment of tuition fees to such schools in this case constitutional,” he wrote.
The Arizona Supreme Court did not set a date for trial for the case, Cain v. Horne.