Ariz. Appeals Court holds school vouchers unconstitutional
This post may be updated.
The AZ Republic reports: “A state appeals court has overturned two Arizona school voucher programs as unconstitutional.”
The opinion is here: Cain v. Horn, No. CV 20070143 (Ariz. App. Div. II, May 15, 2008). A few excerpts:
In 2006, the Arizona legislature enacted House Bill 2676 and Senate Bill 1164, establishing respectively the Arizona Scholarships for Pupils with Disabilities Program . . . Under the scholarship program, public school students with a disability may transfer to a public or private, primary or secondary school, and the state will pay a scholarship up to the amount of basic state aid the student would generate for a public school district. §§ 15-891, 15-891.04. Under the grant program, the state will pay $5,000 or the cost of tuition and fees, whichever is less, for children who have been placed in foster care to attend a private primary or secondary school. §§ 15-817.02, 15-817.04. Under both programs (collectively, the “school voucher programs”), parents or legal guardians select the school their child will attend. The state then disburses grant funds to the parent or guardian, who must “restrictively endorse” the check or warrant for payment to the school. §§ 15-817.01, 15-891.03(F). Both sectarian and nonsectarian schools may participate in the school voucher programs, and schools are not required to alter their “creed, practices or curriculum” in order to receive the funding . . .
In February 2007, Cain filed a complaint in Maricopa County Superior Court, challenging the constitutionality of the school voucher programs and seeking to enjoin Horne from implementing them . . . The trial court granted Horne’s motion, finding the school voucher programs did not violate the provisions of the Arizona Constitution cited by Cain, and dismissed all of Cain’s claims with prejudice. . . .
However, as noted above, Arizona has another constitutional provision relevant to the disposition of this case. The Aid Clause prohibits any “appropriation of public money made in aid of . . . private or sectarian school[s].” Ariz. Const. art. IX, § 10. And Cain argues the state’s “disbursement of benefits” under the school voucher programs here does “precisely what [the Aid Clause] forbids,” and contends the trial court erred in finding otherwise. The plain language of our state constitution requires us to agree . . .
We conclude, therefore, that the school voucher programs provide aid to private schools in violation of the Aid Clause, article IX, § 10, of the Arizona Constitution . . . 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. Of course, “if legislators wish to revive what is foreclosed by our constitutional . . . text, they may propose a constitutional amendment. Should Arizona’s citizens want to repeal our constitutional prohibitions, they may adopt such an amendment.” . . .