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Ruling on Arizona vouchers could have broad reach

By Paul Davenport
The Associated Press
Tucson, Arizona | Published: 12.09.2008
PHOENIX — Arizona Supreme Court justices are weighing whether two small school voucher programs for foster and disabled students are constitutional. But the outcome could extend beyond the approximately 450 students now benefiting from the programs.
The justices on Tuesday heard arguments on whether the programs authorized by the Legislature in 2006 violate the Arizona Constitution’s bans on using tax dollars to support religion or to fund private schools.
Justice Andrew Hurwitz said arguments being made by a lawyer defending the two programs seemingly would apply to voucher programs with much broader eligibility.
“Absolutely, your honor,” agreed the attorney, Tim Keller.
The vouchers for foster and disabled students are cash grants in the form of state payment warrants provided to parents, who must sign them over to private schools where their children are enrolled.
Voucher supporters say they help parents meet their children’s educational needs. Opponents say vouchers undermine state support for public schools.
The two state voucher programs represent the latest steps in a stream of education initiatives adopted at the urging of school-choice advocates.
Other changes made since the mid-1990s include providing public funding for charter schools, giving income-tax breaks for donations for private school scholarships and allowing students to attend public schools outside their attendance areas.
Keller told the justices that the voucher programs are legal because parents — not the state — pick which schools meet their children’s educational needs.
“Allowing parents to purchase services from an institution is not aid to an institution. It’s aid to parents,” Keller said.
Keller acknowledged that it’d be unconstitutional for the state to pay a private school directly, but Hurwitz questioned whether routing the state money through the parents amounts to the same thing.
“Isn’t that direct aid? It’s not the parents’ money,” he said.
An attorney for opponents acknowledged that it’s difficult to draw “a line” but said the voucher programs trample on constitution provisions intended to preserve the state’s neutrality toward religion, ensure that tax dollars don’t support religion and prevent diversion of dollars needed for public schools.
“You have to go back” to the constitutional framers’ intent, attorney Don Peters told the justices.
With the voucher programs, the Legislature “is rerouting money” that should be supporting public schools, not private ones, Peters said.
A trial judge upheld the voucher programs in 2007, but the Court of Appeals ruled in May that they violate the Arizona Constitution’s ban on state aid to private schools.
Meanwhile, a separate legal challenge is pending in the state court system regarding tax credits provided to businesses that contribute money to groups providing private school scholarships.
A three-judge panel of the midlevel Court of Appeals on Sept. 17 heard arguments on the legality of the corporate tax credit. A trial judge in 2007 had upheld the constitutionality of the corporate version.
The Supreme Court in 1999 upheld the constitutionality of an income tax credit for individuals making donations for private school scholarships.
The Supreme Court did not say Tuesday when it will rule on the vouchers challenge mounted by the Arizona Education Association, the Arizona School Boards Association and other groups, but the justices normally release opinions within several months after hearing arguments.