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Supreme Court deems voucher-like program legal

Arizona’s controversial system of vouchers for private and parochial schools is legal, the Arizona Supreme Court ruled today.

Without comment, the high court refused to disturb a Court of Appeals decision which said the program, officially dubbed “empowerment scholarship accounts,”  does not run afoul of a state constitutional provision that bars public funds from being used to subsidize private and parochial schools. That court said the fact the parents control the money was sufficient to make the program legal.

Friday’s decision also means the justices find no violation of a separate section of the constitution making it illegal to use tax dollars for religious worship or instruction.

The Supreme Court ruling officially deals with a challenge to a small-scale version of the vouchers enacted in 2011 to provide taxpayer-funded alternatives to public schools for students with special needs.

But Don Peters, an attorney for the education groups which challenged the legality of the program, said it also effectively ratifies last year’s legislation, which expanded eligibility to all students attending schools rated D or F.

On paper, the lawsuit dealt only with a small-scale version of vouchers, one enacted in 2011 for students with special needs.

That theoretically includes about 200,000 of the approximately 1.1 million youngsters in Arizona public schools.

There is a cap in place that limits year-to-year increases in vouchers by half a percent, about 5,000 a year. But that cap self-destructs in 2020.

Potentially more significant, Friday’s decision likely removes any legal hurdle from a legislative effort this year to vastly expand the program to perhaps three-fourths of all children.

“I think if you can do this for any group of kids, you could do it for every kid in the state,” Peters conceded.

A bill to do something pretty close to that is awaiting a House vote.

The scholarships are essentially a checking account of state funds set up for parents to use for permissible expenses. Each account starts with $5,300 — essentially 90 percent of basic state aid paid to public schools — plus additional dollars for special needs.

HB2291, approved earlier this year by the House Ways and Means Committee, would expand the program allowing vouchers for any student eligible for the federal free- or reduced-price lunch program. Estimates are that could encompass about 600,000 students after the annual cap is removed.

But Rep. Debbie Lesko, R-Peoria, actually wants the full House to make the measure even broader than that: Rather than having to figure out which families are eligible, she is proposing to open the door to any student who would be attending a school eligible for federal Title I funding, meaning any school where at least half the students are considered low income. And that, she said, could ultimately boost eligibility to 800,000.

Lesko has stalled a vote by the full House while trying to deal with objections.

“I think the problem may be in the Senate,” she said, where she has yet to line up the necessary 16 votes.

Lesko said, though, that Friday’s ruling “definitely helps” the chances for approval now that foes can no longer argue that an expanded program is unconstitutional and will lead to new lawsuits.

Andrew Morrill, president of the Arizona Education Association, one of the challengers, acknowledged that point. But he said it now makes it more important than ever for lawmakers to concentrate on the remaining question: Does the program work?

“If we’re going to leave this in the arena of public policy, we had better make sure that we can say definitively voucher programs are good overall,” Morrill said.

There have been efforts by some legislators to attach requirements, such as having the students educated with these public funds in private and parochial schools take the same standardized tests as youngsters in public schools. But those has been beaten back by supporters who say that parents are in the best position to know if their children are getting the education they need.

Supporters of an expanded program face other hurdles in lining up votes, including questions of cost.

On paper, there should be a savings by expanding the program because the vouchers provide parents with an account equivalent to 90 percent of what the state would otherwise pay in aid for that child to attend a public school.

But an analysis of Lesko’s original proposal done by the staff of the Joint Legislative Budget Committee said her plan actually would require more state tax dollars than now, at least in part because the vouchers would be available to kindergarteners who might otherwise have attended private schools anyway at parental expense.

Potentially more significant, that $5,400 is computed on 90 percent of what the aid would have been if the student were in a charter school. That’s because the state puts more money into charter schools because they do not have access to things like local tax revenues.

And that $5,400, according to budget analysts, actually is more than the state now pays in aid for most students in traditional public schools.

Lesko agreed there would be a hit to the state treasury. But she said that moving students out of traditional public schools saves money for taxpayers in general because it reduces what has to be raised at the local level.

In refusing to consider the issue, the Supreme Court effectively ratified last year’s Court of Appeals ruling.

Appellate Judge Jon Thompson, writing for the court, said nothing in the program amounts to the state providing funds for religious worship or instructions.

“The ESA students are pursuing a basic secondary education consistent with state standards,” Thompson wrote. “They are not pursing a course of religious study.”

And Thompson said the vouchers do not result in the state encouraging the preference of one religion over another, or religion over atheism.

The appellate court similarly found no violation of that constitutional provision barring aid to any parochial or private school. Thompson wrote that the program is designed to benefit the families, not the private or parochial schools.


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