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A state law that gives tax dollars to private and parochial schools to educate youngsters is illegal, the Arizona Court of Appeals ruled Thursday.

In a unanimous decision, the judges said the program, authorized by lawmakers two years ago, violates a provision in the Arizona Constitution barring the use of tax dollars to aid those kind of schools.

Judge Garye Vásquez acknowledged the Legislature generally sets the policy of the state. But he said its ability to do that is limited.

"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 for the court.

Vásquez said if lawmakers want such a program they are free to propose a constitutional amendment and see if voters will adopt it.

Thursday's ruling is a significant defeat for legislators who initiated the very small program in 2006 to test the legal waters.

They had hoped a positive court ruling would pave the way for them to propose a full-blown voucher program, with every parent in the state entitled to use state tax money to send their children to any school they want.

Ron Johnson, who lobbies on behalf of the state's three Catholic bishops — and the network of Catholic schools they operate — said this is not the end of the fight. He promised an appeal to the Arizona Supreme Court.

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

The "vouchers" are checks, made payable to the parents who then must endorse them over to the private or parochial school. But attorney Tim Keller of the Institute for Justice said that doesn't mean tax dollars are going to "aid" those schools.

"In this case, the aid goes to parents of children, not to private schools," Keller said.

"Any benefit to those schools is purely coincidental," he continued. "The legislative intent was clearly to help out disadvantaged kids and their parents (to) find the best education possible."

Vásquez acknowledged courts in some states with similar constitutional provisions have used the "true beneficiary theory" to uphold state tax dollars being used to pay the textbook and transportation costs of youngsters going to private or parochial schools.

But the judge said courts in those states "have uniformly rejected the notion that schools are not aided by tuition payments," saying that picking up the narrow costs of texts and transportation is far different from actually using tax dollars to pay for the cost of educating the youngsters.

And the judge said accepting the argument that it is the students who are aided and not the private and parochial schools would make the constitutional provision meaningless "since practically every expenditure for school purposes aids the child."

Thursday's ruling was praised by education groups who filed the legal challenge to the vouchers.

In a prepared statement, Panfilo Contreras, executive director of the Arizona School Boards Association, said vouchers are a bad idea because "they divert funds from an already strapped system and channel them to private organizations that, unlike public schools, are not required to be accountable for how the money is spent or the level of achievement that results."

Private and parochial schools, unlike regular public schools or even privately run charter schools, are not subject to most of the same regulations, including not having to administer the AIMS test at various times to check student progress.

But Keller said parents are in the best position to know what is best for their children.

He also pointed out that some public schools already contract with private and parochial schools to educate children with special needs. Keller said Thursday's ruling essentially means "bureaucrats" are in a better position to know what a child needs than his or her parents.

In its 21-page ruling, the appellate court also fired a warning salvo at lawmakers, telling them not to try to do indirectly what they cannot do directly. The judges said even if the state were to give tuition money to parents in a more circuitous fashion rather than direct vouchers "it would still transfer state-appropriated funds to private schools."

Johnson said parents, who also are taxpayers, are entitled to make what they believe are the best education decisions for their children. And he said the fact some of these schools also provide religious instruction is irrelevant.

"They're getting basically a quality education in essentially the same subjects that the other schools are offering, too," he said.

"The fact that they may at the end of the day or the beginning of the day or sometime also include some sort of other religious component as an add-on to the rest of their substantive materials to me doesn't seem to be a problem."