Arizona Corporate Tax Credit Scholarships - Review

School Choice Offers “Quality Education to All” Promised by Arizona Constitution

On September 19, 2006, the Arizona School Boards Association and the American Civil Liberties Union of Arizona announced a lawsuit against the state’s scholarship tax credit program for low-income families. 

Since 1997, Arizona has offered tax credits to individuals who donate to scholarship funds for families who wish to choose private schools, and that program now serves more than 21,000 children.  Following up on the program’s success, the state Legislature this year expanded it to include corporate donations for scholarships to help low-income children escape failing public schools.

The ASBA and ACLU want to block the expanded program through legal action, claiming scholarship tax credits are unconstitutional in Arizona.  But as the Arizona Supreme Court has already ruled, they could not be more wrong.


School Choice Upholds the Promise of Quality Education for All

The education provision of the Arizona Constitution has never been understood to preclude assistance for students in private schools and colleges, as school choice opponents claim.

Article XI, section 1 of the Arizona Constitution says:

A. The legislature shall enact such laws as shall provide for the establishment and maintenance of a general and uniform public school system, which system shall include:

  1. Kindergarten schools;

  2. Common schools;

  3. High schools;

  4. Normal schools;

  5. Industrial schools.

  6. Universities, which shall include an agricultural college, a school of mines, and such other technical schools as may be essential, until such time as it may be deemed desirable to establish separate state institutions of such character.

Section 6 of the same article elaborates on the common school component of the system: “The Legislature shall provide for a system of common schools by which a free school shall be established and maintained in every school district for at least six months in each year, which school shall be open to all pupils between the ages of six and twenty-one years.”

Importantly, nothing in this section of the Arizona Constitution prohibits support for parents choosing private education.  Moreover, Arizona’s past practices and case law make clear that aid can be provided to students choosing private schools.

For example, Arizona offers scholarships to students at the state’s private colleges and universities, just as it does for students in public institutions, which are part of the “public school system.”

In addition, Arizona’s original tax credit for individual donations to school tuition organizations, which was upheld by the Arizona Supreme Court in 1999 in Kotterman v. Killian, is nearly identical to the expanded program now being challenged.

In Kotterman, the Arizona Supreme Court said:

The Arizona legislature has, in recent years, expanded the options available in public education…. It now seeks to bring private institutions into the mix of educational alternatives open to the people of this state.

The encouragement of private schools, in itself, is not unconstitutional.  Such a policy can properly facilitate a state’s overall educational goals.  As the Mueller majority noted [referring to Mueller v. Allen, a U.S. Supreme Court case involving tax deductions], private schools frequently serve to stimulate public schools by relieving tax burdens and producing healthy competition…. They also further the objective of making quality education available to all children within a state. (Kotterman, 972 P.2d at 611.)

In other words, the Court held that scholarship tax credits actually further the educational goals of the state by “making quality education available to all,” contrary to the claims of school choice opponents.


Arizona is not Florida

It appears that with this lawsuit, the ASBA and ACLU want to capitalize on a legal setback for school choice delivered by the Florida Supreme Court when it struck down that state’s Opportunity Scholarships program in January.  Both states’ constitutions contain education provisions that use the word “uniform” in connection with the public school system, but that’s where any similarity ends.

First, Arizona’s education clause is broader than Florida’s and includes all public institutions from kindergarten through universities in the “public school system.”  In that context, the fact that Arizona has for years offered scholarships for students to choose public or private universities is strong evidence that school choice is constitutional at the K-12 level as well.

While Arizona’s “uniform” clause was not at issue in Kotterman, the Arizona Supreme Court’s logic directly contradicts the holding of the Florida court:

Some might argue that the statute in question runs counter to these goals [of improving education] by encouraging more students to attend private schools, thereby weakening the state’s public school system.  But that is a matter for the legislature, as policymaker, to debate and decide. It is not for us to pass on the wisdom of this or any other social policy.  (Kotterman, 972 P.2d at 623-24.)

Finally, the Florida Supreme Court’s ruling was itself flawed.  The ruling was without precedent in Florida, and in fact contradicted a decision by the only other state supreme court in the nation to look at school choice and “uniformity.”  In that case, the Wisconsin Supreme Court held—as the Arizona Supreme Court should—that Milwaukee’s school choice program simply offers additional educational options to children and that such options are permitted under the state Constitution. 

The Florida court also ignored the only research conducted on the state’s school choice program—four independent studies that all found that school choice enhanced public education by spurring the state’s most troubled public schools to improve.


Blaine Again

The final flaw in the ASBA and ACLU’s lawsuit is their reliance on the Arizona Constitution’s Blaine Amendment, an unfortunate remnant of 19th-century anti-immigrant and anti-Catholic bigotry.  Not only is an argument that the Blaine Amendment prohibits school choice shameful, but it is also pointless.  When the Arizona Supreme Court upheld scholarship tax credits the first time, it called the Blaine Amendment a “clear manifestation of religious bigotry” and declared that it would “be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it.”

School choice opponents argue that scholarship tax credits violate the Blaine Amendment by impermissibly supporting private and religious schools.  But, again, the Arizona Supreme Court flatly rejected that argument in Kotterman, noting that the scholarships help parents and children—not schools.

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