Arizona court upholds constitutionality of school voucher program for students with disabilities
Niehaus v. Huppenthal, No. 2011-017911 (Ariz. Super. Ct. Jan. 25, 2012)
Abstract: The Maricopa County Superior Court has denied the plaintiffs’ motion seeking to permanently enjoin the enforcement of SB 1553, a scholarship program known as the Arizona Empowerment Scholarship Accounts. The program provides state-funded “scholarships” for qualified students with disabilities, through which their parents may pay tuition and fees at private schools. The court distinguished SB 1553 from the voucher program struck down by the Arizona Supreme Court in Cain v Horne, 202 P3d 1178 (Ariz. 2009), noting that under SB 1553, scholarship funds “are held in an account which allows parents to make educational choices and draw from the account for various services and to different entities.” “The exercise of parental choice among education options makes the program constitutional,” explained the court.
Facts/Issues: In 2011, the Arizona Legislature passed SB 1553, a scholarship program known as the “Arizona Empowerment Scholarship Accounts.” SB 1533 authorizes the Department of Education (ADE) to disburse public funds as scholarships. These scholarships provide educational options for qualified students with a disability, including the payment of tuition and fees at private schools. The parent of a scholarship student must agree to release the school district from all obligations to educate the student. The scholarships are 90% of what ADE would pay a public school educating the student. The plaintiffs filed a motion seeking to to enjoin ADE from disbursing S.B. 1553 scholarships, alleging that the disbursement of money violates Article 9, Section 10 (Aid clause) and Article 2, Section 12 (Religion clause) of the Arizona Constitution.
Ruling/Rationale: The Superior Court denied the plaintiffs’ motion, holding that disbursement of scholarships under SB 1553 does not violate either the state constitution’s “Aid clause” or its “Religion clause.” Rejecting the plaintiffs’ reliance on Cain v. Horne, it concluded that unlike the scholarship program in Cain, SB 1553 allows the parent to “choose to fund various educational services and programs from more than one entity,” and that ”exercise of parental choice among education options makes the program constitutional.” In other words, the student is not required to enroll in a private or religious school in order to make use of the funds.
The Superior Court, likewise, found no violation of the “Religion clause” because Arizona is not directing where the funds go, as was the case in the Arizona Supreme Court’s decision Kotterman v Killian, 193 Ariz. 273, 972 P22d 606 (1999). Kotterman involved a state law providing for tuition tax credits for contributions to private religious schools. The Arizona Supreme Court determined in Kotterman, “that the tax credit statute was constitutional because there was no appropriation by the state from general state fund for an identified purpose or destination. The range of choices and neutrality of the system made any benefit to a religious school ‘indirect and attenuated.’” The Superior Court concluded, likewise, that any benefit to a religious school under SB 1553 is indirect and not a result of state action. As a result, the Superior Court found SB 1553 does not have purpose of directly benefiting any religious school.
Niehaus v. Huppenthal, No. 2011-017911 (Ariz. Super. Ct. Jan. 25, 2012)
[Editor's Note: COSA members may access Legal Clips' March 2009 summary of Caine v. Horne here.
On January 26, 2012, the Tucson Citizen carried an article by Ann Ryman of the Arizona Republic News discussing the Maricopa Superior Court's decision. According to Ryman's report, groups that sued to end the program said they will appeal. But supporters view the ruling as a first step toward creating a wide program that eventually would cover many other, perhaps all, public-school students. Opponents say the program will harm the public-school system by depriving it of resources. Some legislators already are trying to expand the scholarships beyond disabled students. House Bill 2626, which was expected to be heard in committee on Monday, January 30, would expand the scholarships to include, among others, children of parents in the military and students who attended low-performing public schools that received a state letter grade of “D” or “F.”
Critics, including the Arizona School Boards Association (ASBA), the Arizona Education Association (AEA) and Arizona Association of School Business Officials, say the law is unconstitutional and fear it will open the door to a larger voucher program in which money is taken from public schools and given to private and religious schools. Chris Thomas, general counsel for the ASBA, said the group is disappointed and will appeal. ASBA argues that scholarship accounts violate the state Constitution because they appropriate public money to aid private schools. Although the savings accounts allow some choice for parents on where to spend the money, the choices are “highly constrained,” making it almost inevitable that the scholarship funds will be used primarily to pay private schools, the association said in court filings.
According to an affidavit provided by the state Department of Education, parents spent a total of $198,764 in scholarship funds in the first quarter of fiscal 2012. About 92 percent went to private schools. Thomas said the larger issue is that the scholarships allow the state to pull back from its financial commitment to public schools. The state’s Constitution requires the state to provide and maintain a uniform public-school system. “That’s always been our concern,” he said. “We believe there ought to be great public schools for all, and the Legislature should be singularly charged with making that happen.”
In September 2011, Legal Clips summarized an article in the Cronkite News reporting that ASBA and AEA had filed suit challenging SB 1553.]
