PHOENIX — A state appellate court ruled yesterday that two voucher programs for foster and disabled children attending private schools violate the Arizona Constitution by using public money to help private and religious schools.
The 3-0 ruling yesterday by a Court of Appeals panel in Tucson reverses a trial judge's ruling that upheld the programs enacted in 2006 at the urging of "school choice" supporters.
The programs provide grants worth thousands of dollars for students, with the money paid in checks to parents who must endorse them over to the schools involved.
The ruling in Cain v. Horne is the first major ruling by an Arizona court on a school-choice issue since the Arizona Supreme Court in 1999 upheld allowing state income-tax credits for donations for scholarships for private school students.
Challengers welcomed the voucher ruling as helping protect public schools.
"Vouchers only divert funding and attention away from public schools," said John Wright, Arizona Education Association president. The teachers union was part of a coalition of education and civil rights groups that challenged the programs.
A lawyer for voucher supporters said they'll ask the state Supreme Court to review the midlevel court's ruling, which ordered the state to stop spending money to implement the programs.
"These programs provide aid to children and families, not to private schools," said attorney Tim Keller of the Institute for Justice. "Pulling the rug out from under these children is not only appalling and tragic, it is a radical departure from Arizona constitutional and policy history."
Each program is funded at $2.5 million annually.
The appellate panel’s ruling said the programs violate the state Constitution's so-called "aid clause" that prohibits using public money to help churches, private schools or religious schools.
While the Legislature sets public policy, "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," Judge Garye L. Vasquez wrote.
The ruling noted that other states' courts have split on whether public funding for such educational purposes as student transportation and textbooks helps the schools involved as well as the students and their families, thus running afoul of bans similar to Arizona's.
However, states with constitutional provisions similar to Arizona's have uniformly agreed that schools are helped by tuition payments, the ruling said.
It doesn't matter that the tuition money is paid to schools indirectly through parents, the ruling added.
Because of the violation of the aid clause, the panel said it did not also rule on the challengers' claim that the voucher programs also violate the state Constitution's mandate for a "general and uniform" public school system.
However, the appellate panel agreed with the trial judge that the programs don't violate a separate constitutional ban, dubbed the "religion clause," against using public money for religious purposes. The programs don't favor one religion over another or religion over non-religion, the ruling said.
While the "religion clause" is similar to the U.S. Constitution's establishment clause on separation of church and sale, the U.S. Constitution has no equivalent to the state's aid clause.
Judges Peter J. Eckerstrom and Philip G. Espinosa joined in the ruling.