Editor's note: The Arizona Supreme Court ruled June 27, 2008, that two voucher programs for foster and disabled children attending private schools could continue through the 2008-2009 school year. The Associated Press reported court issued its ruling the same day state lawmakers approved legislation cutting the $3.2 million set aside to fund the program. An Arizona Court of Appeals panel had ruled May 15, 2008, that the programs violated the Arizona Constitution by using public money to help private and religious schools. The state had asked the Supreme Court last month to rule whether the program was constitutional and whether parents could continue to receive taxpayer money until it makes a decision.
PHOENIX — A judge has upheld two new state voucher programs designed to provide money to send foster and disabled children to private schools, handing a legal win to Arizona supporters of so-called "school choice" initiatives.
Challengers contended that the programs enacted by the Legislature last year violate state constitutional prohibitions against public funding for private and religious schools. They also argued they undermined the state's public-school system by diverting needed money.
However, Judge Bethany Hicks of Maricopa County Superior Court agreed with defenders of the voucher programs, ruling last week that the grants to parents aren't appropriations of state money for religious worship or instruction and don't support any religious organization.
Also, the June 13 ruling said, the voucher programs don't prevent the state from providing the constitutionally mandated "general and uniform public school system."
Taken with previous Arizona court rulings, including ones that upheld the constitutionality of tax breaks for contributions for public-school tuition grants, Hicks' ruling should encourage opponents of "school choice" measures to back off, said Tim Keller, a lawyer for supporters.
"It's really time for opponents of school choice to drop these frivolous battles," said Keller, an official of the Institute for Justice.
The rulings consistently have found that the programs are permissible because they don't promote religion, Keller said.
"Rather than requiring a religious exclusion, they have to require religious neutrality," Keller said.
Supporters likely will push for further incremental steps "as a genuine method of improving the state of public education" but it is unrealistic to expect the current Legislature or Gov. Janet Napolitano to agree on any sweeping expansions, Keller said.
The challengers included the Arizona Education Association and the American Civil Liberties Union of Arizona. AEA spokesman John Wright said the opponents would appeal Hicks' ruling.
"We owe it to Arizona students and all of Arizona's schools to pursue it to its conclusion," Wright said. "It's not frivolous. It's justice."
The voucher programs do promote religion when parents use vouchers to send their children to religious schools, he said. "We've got a very compelling case that these are not (neutral on religion)."
The voucher program for disabled students has taken effect, while the one for foster children is to be launched with the 2007-'08 school year. Each is capped at $2.5 million.
Napolitano, a Democrat who opposes vouchers, grudgingly accepted the programs as part of a 2006 budget compromise that saw the Republican-led Legislature give ground on some of her priorities.
Critics of the voucher programs initially sought to bypass lower courts by filing their lawsuit directly with the state Supreme Court, but the justices turned it away.