Arizona Special Needs & Foster Care

Andrea Weck with her daughter Lexie

Cain v Horne
IJ & Parents Fight Second Legal Challenge

A coalition of special interest groups filed its second legal challenge to Arizona’s school choice programs for special needs and foster children on February 20, 2007.  The Arizona Supreme Court rejected the first challenge in January 2007, and once again, IJ is intervening to defend the programs on behalf of parents.

Unfortunately, on March 25, 2009, the Arizona Supreme Court declared that Arizona’s innovative programs violate a unique provision Arizona Constitution’s prohibiting appropriations of public funds “in aid of . . . private and sectarian schools.”   The ruling runs contrary to decades of Arizona Supreme Court precedent that had always held that programs that provide aid to individuals, not institutions, are constitutional.  The ruling also ignored a key holding in the Court’s 1999 decision in Kotterman v. Killian, which upheld Arizona’s Individual Scholarship Tax Credit Program, that school choice programs primarily benefit families and children and that any benefit to private and religious schools was purely incidental.

Fortunately, the Supreme Court’s decision in Cain v. Horne did reaffirm that tax credits do not constitute appropriations, which sends a strong signal to school choice opponents that the Arizona Supreme Court is not going to overrule its decision in Kotterman v. Killian.  The practical impact of the Cain decision is that Arizona’s existing school choice tax credit programs will continue to operate, and IJ our allies will work with the Arizona Legislature to pursue every opportunity to expand those programs, particularly to assist the hundreds of families devastated by the Court’s shameful decision striking down the voucher programs.



Essential Background



Client Profiles and Photos

Latest Release: Arizona Governor to Sign Lexie’s Law To Save Scholarships for Special Needs and Foster Children (May 29, 2009)

Client Video

Legal Briefs and Decisions

Launch Release: Institute for Justice Vows to Defend Arizona’s Scholarships for Disabled and Foster Care Students From Unprecedented Legal Attack (October 12, 2006)

Legal Document: Intervenors Supplemental Brief (November 25, 2008)

Legal Document: Petition for Review to Arizona Supreme Court (June 19, 2008)

Legal Document: Parent Statements Supporting Continuation of Scholarships (June 19, 2008)

Legal Document: Motion for Clarification / Stay of Appellate Ruling (June 19, 2008)

Decision: Maricopa County Superior Court (June 13, 2007)

 Amicus Briefs
Amicus: Center for Arizona Policy

Amicus: Pacific Legal Foundation and Arizona Autism Coalition

Amicus: Arizona Center for Disability Law

Amicus: Chrysalis Academy Parents Association

Amicus: Alliance for School Choice

Amicus: Father's Heart School

Case Timeline (Second challenge)


Choice Opponents' Lawsuit Filed:


February 20, 2007


IJ Intervention Filed:


March 13, 2007


Court Filed:


Maricopa County Superior Court Arizona Supreme Court

Current Court: Arizona Supreme Court


June 14, 2007: Maricopa County Superior Court upheld programs
May 16, 2008:  Arizona Court of Appeals declares programs unconstitutional
March 25, 2007:  Arizona Supreme Court affirms Court of Appeals decision striking down programs




Second Case Completed

Case Timeline (First challenge)


Choice Opponents' Lawsuit Filed:


November 14, 2006


IJ Intervention Filed:


December 7, 2006


Court Filed:


Arizona Supreme Court




January 9, 2007: Arizona Supreme Court declines to hear first challenge




First case completed

Next Key Date:


Additional Releases

Maps, Charts and Facts

Release: Arizona Supreme Court:  Special Needs Scholarship Programs Violate State Blaine Amendment (March 25, 2009)

Download Report : Private Choice In Public Programs: How Private Institutions Secure Social Services for Arizonans

Release: Arizona Supreme Court to Decide Future Of Scholarships for Special Needs and Foster Children (December 9, 2008)
Release: Arizona and National Education Advocates Urge Arizona Supreme Court to Uphold Scholarships for Special Needs and Foster Children (December 2, 2008)
Release: Parents Defending Scholarship Programs For Special Needs and Foster Children File Final Brief with Arizona Supreme Court (November 25, 2008)
Op-eds, News Articles and Links
Release: Arizona Supreme Court to Decide Future Of Scholarships for Special Needs and Foster Children (October 28, 2008)

Article: Defending School Choice in Arizona the IJ Way; Liberty & Law (February 2009)

Article: IJ and Parents’ Fight For Vouchers Heads to Arizona Supreme Court; Liberty & Law (August 2008)

Article: Trial Court Throws Out ACLU’s Latest Frivolous Lawsuit; Liberty & Law (June 2007)

Article: IJ Scores Victory Against School Choice Opponents; Liberty & Law (February 2007)

Article: IJ Aggressively Defends School Choice in Arizona; Liberty & Law (December 2006)

Release: Institute for Justice Applauds Funding Of Scholarships for Special Needs and Foster Children (August 22, 2008)
Release: Arizona Supreme Court Confirms That Scholarships For Special Needs and Foster Children Should Continue, But Legislature Cuts Program Funds (June 30, 2008)

Release: Arizona Parents Appeal Scholarship Case, Ask for Programs for Special Needs and Foster Children to Continue(April 21, 2008)

Release: Arizona Appeals Court Overturns Ruling for School Choice, Scholarships for Special Needs and Foster Children in Jeopardy (May 16, 2008)


Release: Another Victory for School Choice: Superior Court Judge Declares Scholarships For Disabled and Foster Children are Constitutional (June 13, 2007)

Release: IJ & Arizona Parents Step In Again To Defend Scholarships for Disabled and Foster Children (March 13, 2007)



Release: IJ & Parents to Defend Arizona’s New School Choice Programs—Again (February 20, 2007)


Release: Victory for School Choice: Arizona Supreme Court Declines to Hear Lawsuit Threatening Scholarships for Disabled and Foster Children (January 9, 2007) 

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