Despite Legal Setback, School Choice Secured for Arizona Special Needs Kids
By Tim Keller
After years of intense litigation defending all four of Arizona’s school choice programs, significant decisions were released in March and April in each of these cases. The decisions ranged from gratifying to disappointing to heartbreaking.
The most encouraging development was the Arizona Court of Appeals’ March 12, 2009, decision in Green v. Garriott upholding Arizona’s Corporate Scholarship Tax Credit Program. In the decision, Judge John Gemmill rejected the ACLU’s arguments and emphasized that tax credit programs “pass constitutional muster.” The decision is good news for the more than 2,000 Arizona children who rely on the scholarships to attend high-performing private schools.
Although the ACLU will most certainly appeal the decision, there is reason to believe, based on prior precedent, that the Arizona Supreme Court will not take the case. If the Court declines to hear the case, it would put an end to the legal challenge to the corporate tax credit program.
||Clockwise from left, parent Victoria Zicafoose with daughter, Sarah, and IJ client Andrea Weck with daughters Lexie, Charlie and Samantha look on as Arizona Gov. Jan Brewer signs Lexie’s Law, named for Lexie Weck.
The most gut-wrenching of the school choice decisions came on March 25, 2009, when the Arizona Supreme Court issued its ruling in Cain v. Horne
. In its decision, the Court declared that Arizona’s innovative state-funded voucher programs for special needs and foster children violate a provision of the Arizona Constitution that prohibits appropriations of state funds “in aid of” private and religious schools.
The Court made a fundamental error because voucher programs do not aid private or religious schools. Rather, vouchers provide aid to parents and children. Providing financial assistance to parents to help them pay tuition is no more “aid” to private schools than giving food stamps to indigent families to buy food is aid to grocery stores. Most maddening is that the ruling leaves no option for further appeals. Of course, that does not mean we gave up the fight.
The day after the decision came down, IJ began working closely with our school choice allies such as the Alliance for School Choice, the Center for Arizona Policy and the Goldwater Institute to draft Lexie’s Law, named after Lexie Weck—daughter of IJ’s lead client in Cain. Lexie’s Law is a new corporate tax credit that will allow Arizona’s existing scholarship tuition organizations to raise additional private donations to fund tuition scholarships for special needs and foster children. Our hard work paid off when Arizona’s new governor, Jan Brewer, convened a special session urging the Legislature to pass Lexie’s Law. The Legislature wasted no time and passed Lexie’s Law in only two days.
While the Cain ruling devastated many families, the governor and the Legislature have restored their hope. For many of the children who had received vouchers, their private schools were the first schools to ever meet their unique educational challenges head-on. We are confident that Arizona’s school tuition organizations and the business community will move quickly to ensure that the great strides these children have made toward improving both their academic and social skills will not be lost.
The Cain decision does have two positive aspects. First, the Court allowed the children relying on the programs to finish the school year. Second, the Court reaffirmed its prior ruling in Kotterman v. Killian that school choice programs funded by tax credits are constitutional.
In yet a third case, the Ninth U.S. Circuit Court of Appeals in Winn v. Garriott, decided in April to reinstate a legal challenge to Arizona’s Individual Scholarship Tax Credit Program that had been previously thrown out of court as frivolous. School choice opponents are trying to tout the decision as a broad win, but the decision is very narrow and did not halt or otherwise interrupt the program. The ruling also does not question the constitutionality of tax credit programs generally, but rather calls into question Arizona’s decision to provide tax credits for donations to certain scholarship tuition organizations that provide tuition grants only to religious schools.
The Ninth Circuit’s concern is that the structure of Arizona’s program may limit parental choice. We believe there are no constitutional flaws in the program and will continue to defend it as the case moves forward. But regardless of the final outcome, Arizona’s tax credit programs will continue to grow and flourish even if some scholarship organizations have to alter the way they award scholarships.
In all, the decisions stack up to a win, a loss (turned into a legislative victory) and a draw. Yet we remain resilient in the face of adversity and will keep fighting for school choice because all parents deserve the right to choose the school that offers their child the best available education, regardless of whether it is a public or private school.
Tim Keller is the IJ Arizona Chapter executive director.