Voucher law is illegal, court says

PHOENIX  A state law which gives tax dollars to private and parochial schools to educate youngsters is illegal, the Arizona Supreme Court ruled Wednesday.

The justices, in a unanimous opinion, called the programs established by the Legislature in 2006 “a wellintentioned effort’’ to assist students with special needs.

“But we are bound by our constitution,’’ wrote Justice Michael Ryan. He said there is no way that the program can be reconciled with a specific constitutional ban against appropriating public funds in aid to private and parochial schools.

The decision is a significant defeat for legislators who had crafted the very small program in 2006 to test the legal waters. They had hoped a contrary ruling would pave the way for them to propose a fullblown voucher program, with every parent in the state entitled to use state tax money to send their children to any school they want.

Ryan said there is a way to make the vouchers legal: convince voters to amend the constitution to alter or repeal the ban.

And Ron Johnson, who lobbies on behalf of the state’s Catholic bishops  and the schools the church operates  said the question of putting the issue on the 2010 ballot may depend on what else voters will be asked to approve that year.

The legislation 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 “vouchers’’ are checks, made payable to the parents who then must endorse them over to the private or parochial school.

Attorneys for the Arizona Education Association and other public education groups sued, contending the programs ran afoul of the constitutional provisions barring use of state dollars to aid these kinds of schools.

Keller argued to the court that the tax dollars were not going to “aid’’ the schools.

He said any aid was for the parents of the children and that any benefit to the schools was “purely incidental.’’ And Keller said courts have upheld the ability of governments to use tax dollars to get nonreligious services, even from religious groups.

Ryan, however, said this is different.

“The voucher programs do not provide reimbursement for contracted services,’’ the justice wrote.

“In fact, they are designed in such a way that the state does not purchase anything,’’ he continued. “Rather, it is the parent or guardian who exercises sole discretion to contract with the qualified school.’’

Nor was the court persuaded by the fact that the checks are given to the parents.

“These programs transfer state funds directly from the state treasury to private schools,’’ Ryan said.

“That the checks or warrants first pass through the hands of parents is immaterial,’’ he said. “Once a pupil has been accepted into a qualified school under either program, the parents or guardians have no choice; they must endorse the check or warrant to the qualified school.’’

Groups that challenged the law hailed the court decision.

“The ruling will enable Arizona to put the focus on, and the full funding for, education in our state back where it should be, our public schools,’’ Panfilio Contreras, executive director of the Arizona School Boards Association said in prepared comments. Similar statements came from other organizations.

But Wednesday’s decision is unlikely to be the end of the issue.

House Speaker Kirk Adams, RMesa, said legislative staff attorneys are reviewing the 21page decision. He said it may be possible to have the state keep paying for the services for the affected children using some different mechanism  and without repealing the constitutional amendment.

The ruling leaves open the question of whether that might be possible.

Ryan acknowledged the Supreme Court in 1967 ruled it was permissible to use tax dollars to partially reimburse the Salvation Army, a religious organization, for providing emergency aid for those in need. What made that legal, he said, is that the group was providing nonreligious services to the public and simply acted as a conduit for the help and received no aid itself.

But Ryan said one thing which made that Salvation Army program legal is that it covered the actual costs of the items and services provided, with nothing for administrative costs. The vouchers, he said, contain no such restriction.

Gov. Jan Brewer, a supporter of vouchers, called the ruling “heartbreaking’’ for the affected families who, without the state funds, will be forced to take their children out of the private and parochial schools.

“Clearly, these parents identified these educational programs as the best environment for their children,’’ the governor said in a prepared statement. Brewer said she wants to work with legislators to find alternatives for these youngsters “that will meet the legal requirements of the Arizona Constitution.’’

Brewer noted that Wednesday’s ruling does not affect the legality of dollarfordollar tax credits available to individuals and businesses that provide money for scholarships for students to attend private and parochial schools. The Supreme Court previously ruled that is legal because the cash involved never was in the state treasury.

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Arizona Constitution Article 9 Section 10

No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.

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