The Issue: Court's Anti-Voucher Ruling
Arizona Republic
May 30, 2008

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Arizona Republic, The (Phoenix, AZ) - May 30, 2008

By rejecting a legislative program that provided private-school funding for special-needs students and foster children, the Arizona Court of Appeals relied on a seemingly unambiguous section of the state Constitution.

It reads in full:

"No tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation."

In its 21-page decision, the court sought to be plainspoken. The "best guide to what the (Arizona Constitution) means is what it says," the three-judge panel reported.

"The plain language of our state constitution requires us to agree" with the plaintiffs, the judges wrote.

Were it truly that simple, we might be inclined to agree with the judges.

By all means, then, let's accede to the wishes of the fervent partisans opposed to that totemic evil thing -- vouchers -- and deny a handful of autistic and other special-needs kids a chance at a decent education. Leave the 500-odd foster kids to flounder. Before the iron language of the Arizona Constitution, their chance to flourish cannot stand. No appropriation ... to any church or private school. None.

Their decision seemed bold. Unambiguous. And, in political terms, right in line with the conservative principle that judges should not steer their preferred policies around plain constitutional language.

But then the judges ... punted.

The two voucher programs declared unconstitutional on May 15 included the "Displaced Pupils Choice Grant" program, involving a maximum of 500 foster kids, and the "Arizona Scholarships for Pupils with Disabilities," involving about 200 kids. The state allocation that permits scholars in those programs to attend private schools totals $5 million.

The cost of the two programs, created in 2006, represents a small fraction of what Arizona taxpayers pay out annually to private and religious schools for other education programs. In just six state-sponsored programs, Arizona pays nearly $22 million to private institutions for the education of more than 22,000 of its students every year.

If an indisputable constitutional principle applies to refusing autistic and foster kids a choice in their education, that principle should apply under any circumstances. But the judges barely touched that "principle" -- in a footnote:

"(T)hese programs are not at issue in the current case, and to the extent the parties invite us to discuss their constitutionality, we decline to do so."

Well, either a principle is at play or it is not.

Many of Arizona's existing private-school scholarship programs have been in existence since the 1980s without enduring court challenge.

Some exist in practice almost exactly like the voucher programs declared unconstitutional. One of them, the Special Education Vouchers for Private Placement, differs from the "unconstitutional" programs in just one significant respect: the public-school bureaucracy gets to make the choice about where to send kids, rather than the parents and guardians.

In 2006, 8,677 Arizona public-school students enrolled in the AIMS Intervention and Drop-out Prevention program, at a cost of more than $5.5 million. The program stipulates that the providers may be public or private, and among those providers is the Young Men's Christian Association, the YMCA.

Put in plain-speaking appellate-judge language, the state has made cost-benefit choices about the education of its children, and, when convenient, it packs them off to private schools. But according to the Arizona Court of Appeals, the "plain language" of the constitution decrees that parents cannot do the same.

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Editorials represent the opinion of the newspaper, whose Editorial Board consists of: John Zidich, Joanna Allhands,Monica Alonzo-Dunsmoor, Steve Benson, Phil Boas, Richard de Uriarte,

Jennifer Dokes, Joe Garcia, Cindy Hernandez, Kathleen Ingley, Robert Leger, Randy Lovely, Doug MacEachern, Joel Nilsson, Robert Robb, Bob Schuster, Linda Valdez and KenWestern