PHOENIX  Supporters of taxfunded vouchers asked the Arizona Supreme Court on Tuesday to rule they are legal despite a constitutional provision banning the use of public funds for private and parochial schools.

Children whose parents support state tax vouchers to send them to private and parochial schools demonstrate Tuesday outside the Arizona Supreme Court. The justices heard arguments over whether the vouchers violate state constitutional provisions. (Capitol Media Services photo by Howard Fischer)

Attorney Tim Keller from the Institute for Justice acknowledged that the vouchers essentially are checks drawn on the state treasury given to parents. And those checks are made out to  and can be cashed by  only a nonpublic school for a child’s tuition, fees and other costs.

Keller told the justices, however, that the true beneficiaries of those state funds are not the schools but the children who are getting the education.

In this case, he said, one voucher program being challenged by education groups and others is specifically for children with special needs; the other is for foster children. Keller said the parents he represents send their children to private and parochial schools after concluding they cannot get educated at public schools.

But Justice Andrew Hurwitz pointed out the legal fight is a lot bigger: If the high court upholds the legality of these vouchers, it would open the door to the Legislature allowing all parents to get tax dollars to send their children to private and parochial schools.

Central to that fight is the meaning of the constitutional prohibition barring aid to private and parochial schools.

Keller, questioned by the justices, conceded the state cannot write out a check to a private school, even if the purpose of that is to help the students there. Hurwitz said he sees little difference between that and the vouchers which also are state checks payable to the same schools.

“It’s not the parents’ money,’’ the justice said.

“They get to direct it,’’ Hurwitz continued. “But they don’t own it.’’

Keller, however, countered that the vouchers are “direct aid to the individual’’ and not to the school.

“But they can’t cash that check,’’ Hurwitz responded.

Justice Michael Ryan said the argument goes beyond the question of what is “aid’’ to these schools.

He noted the vouchers can be used at parochial schools which are free to discriminate in admitting students based on religious preferences and also are free to insist that all students attend religious worship. Ryan pointed out that another section of the Arizona Constitution prohibits the use of public funds for religious worship, exercise or instruction.

Keller, however, said as long as the parent is purchasing education for a child, which he said is a legitimate state function, it is immaterial that the instruction also includes religious training.

But the justices also took issue with arguments of Don Peters who represents the Arizona Education Association, Arizona School Boards Association, the American Civil Liberties Union and other foes of vouchers.

The justices pointed out that state tax dollars already are being paid to private and parochial schools. The only difference, they noted, is the payments come directly from public school districts who decide that certain students could better get the help they need from one of these schools.

Peters said the difference is that each youngster technically remain a public school student and that public school retains the responsibility to ensure the child gets an education. All these schools are doing, he said, is contracting with private or parochial schools for specific services for students.

That distinction, Peters said, is critical.

He said the Arizona Constitution requires the state to maintain a public school system and imposes various requirements on public schools that do not apply to others.

“None of that would mean much if the Legislature was free to create, in effect, a shadow system of publicly funded private schools that could ignore all of those requirements,’’ he told the justices. Peters said the ban on using state funds to “aid’’ those schools is part of that design.

Whatever the Supreme Court rules may not be the last word, at least not politically.

Keller said if the case goes against him he may craft a constitutional amendment to spell out that vouchers are legal. And John Hartsell, spokesman for the Arizona Education Association, said if the court upholds vouchers his group might ask voters to amend the constitution to spell out they are forbidden.

The justices gave no indication when they would rule.

Lawmakers set up the two voucher programs in 2006.

A trial judge upheld their last year. But in a unanimous decision earlier this year, the Arizona Court of Appeals concluded they were unconstitutional.

“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,’’ wrote appellate Judge Gary Vasquez.

Supreme Court Chief Justice Ruth McGregor excused herself from the legal arguments. While she did not give a reason, her brother, Dennis Van Roekel, is president of the National Education Association.

Appellate Judge Ann Scott Timmer sat in as a replacement.