Credits Crunched: Arizona Rulings Hit Scholarships and Special Education Vouchers

Article excerpt

Arizona reemerged this year as the central front in the legal conflict over private school choice, with three cases challenging four programs decided within six weeks. Plaintiffs included the state's teachers unions, the Arizona School Boards Association, the American Civil Liberties Union of Arizona, and the People for the American Way. The Institute for justice, which coordinated the defense of Cleveland's school voucher program in the landmark 2002 Zelman case, intervened on behalf of program beneficiaries in each case.

While the participants were familiar, the challenges were in other respects unusual. Two of the cases involved programs offering tax credits for donations to scholarship funds, which have elsewhere avoided legal challenge since a favorable ruling from the Arizona Supreme Court in 1999. Equally uncharacteristic was litigation involving voucher programs for students with special needs and those in foster care. Politically popular and seemingly consistent with the practice of private placement under the federal Individuals with Disabilities Education Act, special-education voucher programs in Florida, Georgia, Ohio, and Utah have not faced court challenge.

The longest-running of the cases, filed in federal court in 2000, alleged that Arizona's individual tax-credit program violates the establishment clause of the U.S. Constitution by permitting organizations to provide scholarships to students that can be used only at religious schools. This, plaintiffs argued, means that participating parents lack "true private choice" as defined by Zelman. Defendants responded that the program offers choice to both taxpayers claiming the credit and parents accepting scholarships, thus achieving "a double attenuation separating the state and religion." They also asserted that the program must be evaluated in light of the full range of choices available to Arizona parents, including interdistrict transfers and ample charter schools.

A Ninth Circuit panel that included the famously liberal Stephen Reinhardt sided with the plaintiffs. While it did not deem scholarship tax credits generally unconstitutional, the decision, if not overturned on appeal, will prevent religious organizations from participating in similar initiatives nationwide--including a parallel program for corporate donations upheld by an Arizona appellate court just weeks earlier. …


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