PHOENIX — House Speaker Jim Weiers may tap his more than $9 million in reserves to keep alive a program that pays for some parents to send their children to private and parochial schools.

Surrounded by affected parents and children, House Speaker Jim Weiers said Wednesday he is exploring whether he can use funds in a special House account to pay for a program that gives parents of children with special needs a state voucher to send their children to private or parochial schools. The budget for the new fiscal year did not include any funds for the program. (Capitol Media Services photo by Howard Fischer)

 Weiers said Wednesday he is seeking legal advice whether the money, left over from prior years, can legally be used to fund a program that Gov. Janet Napolitano and a majority of lawmakers excluded from the new state budget.

And state School Superintendent Tom Horne said if Weiers gets him the cash, he will restore the program.

 The relief — even if it comes — may only be temporary. The state Court of Appeals already has ruled it is unconstitutional to use public funds to aid private and parochial schools.

 But the Arizona Supreme Court has agreed to let the program continue while it reviews its legality.

 Only thing is, the budget deal negotiated by Napolitano, Senate President Tim Bee and Democrat lawmakers cut the $5 million which had been allocated last year.

That decision drew protests and pleas Wednesday from parents who said the special program, first approved in 2006, provided their children needed educational services.

 Brendan Fay said his autistic daughter, Rebecca, was enrolled in Tucson public schools.

He said despite his efforts to fight for opportunities for her, she was still reading at a first-grade level as a fifth grader. And she was doing math at a kindergarten level.

 Using the voucher program, Fay said he enrolled Rebecca at Father’s Heart, a Tucson church school. “After one year at Father’s Heart School our daughter is at fifth grade reading level, also fifth grade level in math,’’ Fay said. “Her social skills, her ability to carry on conversations, her interaction with other children have increased dramatically.’’

 Fay said Rebecca did not get all the services she needed in Tucson public schools.

 Kristina Blackledge told a similar story about her 12-year-old son — and how the voucher program helped him after being in special education programs in public schools since the first grade.

“Baxter has a chance to make friends for once,’’ she said. “Baxter has a chance to succeed in academics for once,’’ Blackledge continued. “Baxter will know what it feels like to be included for once.’’

 And Myra Zwagerman of Tempe, said it is wrong for the state to end the funding so soon after the program started. She said autistic children like her son, Lee, “really don’t do well with change.’’

 The 2006 law provides $2.5 million in state tax vouchers to the parents of former foster children who have been adopted, vouchers which can be used to pay tuition and fees at private or parochial schools. It also set aside an identical amount is for a similar programs for disabled youngsters.

 The budget for the new year that began July 1 included no cash. Weiers said that was not the wish of most House Republicans.

But he said they essentially were locked out of the budget talks largely between Napolitano and Bee.

 And Weiers was left essentially powerless when four House Republicans broke ranks to vote with Democrats to come up with the 31 votes necessary for the negotiated budget.

 But Weiers is sitting on $9 million in accumulated surpluses from prior House budgets.

“If there’s a way to be able to help these kids and these parents, that’s what we’re here for and that’s what we’d like to do,’’ he said.

Whether he can use it for anything other than expenses of the House of Representatives is unclear.

 Rep. Rick Murphy, R-Glendale, who crafted the 2006 law, called the decision by budget negotiators to rescind voucher funding “the height of hypocrisy’’ for those who say they support children and education. “The first chance they got, they kicked these children to the curb,’’ he said.

And Murphy said Napolitano in particular “wants to have it both ways’’ on issues of school choice for parents. “She signed these bills (creating the voucher programs) and then she worked as hard as she could to gut the program the first chance she got,’’ he said.

 Gubernatorial press aide Jeanine L’Ecuyer would not comment about why Napolitano cut funding for the two programs. Either way, the question of the legality of vouchers remains for the state’s high court.

 The “vouchers’’ are checks, made payable to the parents who then must endorse them over to the private or parochial school. Backers said they do not run afoul of the law because the funds aid the students who are getting the services, not the schools which the state cannot constitutionally help.

 But appellate Judge Garye Vasquez, writing for the unanimous court, found that argument unpersuasive. “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,’’ he wrote.