Arizona A+: State Supreme Court Flunks Voucher Subsidies for Religious and Other Private Schools

By Bathija, Sandhya | Church & State, May 2009 | Go to article overview

Arizona A+: State Supreme Court Flunks Voucher Subsidies for Religious and Other Private Schools


Bathija, Sandhya, Church & State


Phoenix attorney Don Peters has strong feelings about school vouchers.

"Some of us," Peters told The Arizona Republic, "just think it's wrong to tax people to pay for private or religious education. The public schools are struggling enough, and these programs would take money away from public schools and route it to private schools."

Fortunately for Peters, who argued the case against vouchers at the Arizona Supreme Court, the Arizona Constitution mandates that viewpoint as well.

On March 25, in a unanimous decision, the state high court ruled two Arizona voucher schemes unconstitutional--marking a huge church-state victory in the battle against taxpayer aid to religious schools.

The ruling also serves as a stinging defeat for pro-voucher forces, including the Alliance Defense Fund, the Institute for Justice and the Arizona Catholic Conference, which fought hard to establish the pair of programs.

These sectarian pressure groups brought forward two small voucher plans aimed at disabled kids and foster children, hoping to win the support of sympathetic legislators. They succeeded when the General Assembly authorized the Arizona Scholarship for Pupils with Disabilities Program and the Arizona Displaced Pupils Choice Grant Program in 2006.

Through these programs, the state allotted tuition funding for a small number of children to enroll in religious and other private schools. Many observers speculated these initial projects were just setting the stage for these groups to push a massive universal voucher plan in the future.

A coalition of parent, education and civil liberties organizations in Arizona, including the Arizona School Board Association, challenged the subsidies as violations of the Arizona Constitution's "no-aid" provision, which prohibits the "appropriation of public money ... in aid of any ... private or sectarian school."

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The Arizona high court in Cain v. Home claimed that though the legislature's programs may be "well-intentioned," Arizona is "bound by [its] Constitution."

"No one doubts that the clause prohibits a direct appropriation of public funds to such recipients," Justice Michael Ryan wrote on behalf of the court. "These programs transfer state funds directly from the state treasury to private schools."

The decision is an important victory for church-state separationists who have argued that vouchers violate constitutional safeguards and hurt the public school system. The U.S. Supreme Court upheld an Ohio voucher scheme under the federal Constitution in 2002, but as Americans United argued in its friend-of-the-court brief in this case, the Arizona "no-aid" provision provides greater church-state protection.

Thirty-six other states in the country have similar "no-aid" provisions in their constitutions, and Americans United hopes the Arizona decision makes it clear that vouchers are constitutionally dubious.

With this ruling, the 37 legislatures that have introduced voucher bills so far this session may have to reconsider the validity of their proposed programs. Voucher bills were introduced in Colorado, Florida, Kentucky, Mississippi, Nevada, New York, Oklahoma, Vermont, Virginia and other states.

"This important decision reflects our best traditions," said Barry W. Lynn, Americans United executive director. "It upholds the right of taxpayers to support only the religious institutions of their choice. Public funds should be spent at public schools."

AU's brief cited the deep historical roots in America against tax support for religion or religious training. It also discussed the views of James Madison and Thomas Jefferson, quoting a U.S. Supreme Court decision that said, "[t]he concern of Madison and his supporters was quite clearly that religious liberty ultimately would be the victim if government could employ its taxing and spending powers to aid one religion over another or to aid religion in general. …

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