Arizona education organizations challenge state law providing public scholarships to disabled students to attend private schools
The Arizona School Boards Association (ASBA) and Arizona Education Association (AEA) have filed suit challenging a new law that provides publicly funded scholarships for children with disabilities to attend private schools, reports the Cronkite News. The suit, which was filed in Maricopa County Superior Court, contends that the law is unconstitutional because it provides public funds to private or religious institutions. “The issue, of course, is the precedent this sets,” said Chris Thomas, ASBA’s director of legal services.
The law allows parents to put 90% of state money allocated for a disabled child’s education into what amounts to a flexible-spending account that can be put toward private school or private education services such as speech or occupational therapy. The money also may be saved for college. The law revives key provisions of a state disability vouchers program struck down by a court in 2009. ASBA and AEA argue the law is also invalid because it requires parents to waive children’s constitutional rights to public education in order to enroll them in other programs. According to Andrew LeFevre, an Arizona Department of Education spokesman, Empowerment Scholarship Accounts totaling about $1 million have been awarded to 86 children for this school year.
Other plaintiffs include the Arizona Association of School Business Officials and Sharon Niehaus, a member of the Governing Board of Continental Elementary School District in Green Valley.
Clint Bolick, director of the Scharf-Norton Center for Constitutional Litigation at the Goldwater Institute, an independent watchdog group that promotes limited government and free enterprise, said the law is constitutional because parents can use the scholarship money in any educational institution. “The choice is entirely in the hands of parents, and the range of options is very broad,” Bolick said. “So I think that we’ve cured the constitutional deficiency.”
Source: Cronkite News, 9/27/11, By Joanne Ingram
[Editor's Note: ASBA/AEA's legal complaint is available here. The ASBA group asserts that the scholarship law is invalid for public policy reasons, as it conditions the availability of a public benefit on a waiver of constitutional rights, and violates two provisions of the Arizona constitution:
1. The Aide Clause (Article 9, Section 10), prohibiting taxes or appropriations of public money in aid of any church, private or sectarian school, or public service corporation; and
2. The Religion Clause (Article 2, Section 12), prohibiting appropriation or application of public money to any religious worship, exercise, or instruction.
A similar scholarship system re-directing public funds from public schools to private schools via parent applications is the subject of a suit in Oklahoma. In April 2011, Tulsa World reported that twenty parents had filed suit in federal district court against Broken Arrow, Union, Jenks and Tulsa school districts for refusing to provide scholarships to their special needs children to attend private schools. The Jenks Public Schools Board of Education explained in a statement on its website that it finds the law to be in conflict with the Oklahoma State Constitution as well as federal guidelines, and will cause public schools to lose state dollars. Read the Legal Clips summary here.
Arizona is no stranger to scholarship litigation. In April 2011, Legal Clips summarized the U.S. Supreme Court's decision in Arizona Christian Sch. Tuition Org. v. Winn, which held that Arizona taxpayers, who were challenging the state’s tuition tax credit on Establishment Clause grounds, lack standing to bring the suit under Article III of the U.S. Constitution. Specifically, the Court’s majority concluded that the taxpayers had not satisfied the two ”conditions” laid out in Flast v. Cohen, 392 U. S. 83 (1968), in order to be excepted from the general rule that taxpayers lack standing to object to government expenditures alleged to be unconstitutional.
In June 2011, Legal Clips summarized a Denver Post article reporting that the American Civil Liberties Union of Colorado (ACLU-CO), along with two other civil liberties groups, had filed suit challenging the Douglas County School District’s (DCSD) voucher plan, which would allow students to attend private schools with public money.]