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.”
The Arizona high court in Cain v. Horne 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.”
Voucher proponents argue that public money is not going to the schools, but to the parents to make a choice, and therefore is not a church-state violation.
“Any tuition that goes to a religious school is through the choice of the parent and or the benefit of the child. It is not ‘state support’ of that school,” asserted Raymond Mulladay. Mulladay co-wrote the Alliance Defense Fund’s friend-of-the-court brief in support of vouchers.
But the Arizona decision said the name on the check is irrelevant.
“That the checks or warrants first pass through the hands of parents is immaterial,” wrote Justice Ryan. “Once a pupil has been accepted into a qualified school under either program, the parents or guardians have no choice; they must endorse the check or warrant to the qualified school.”
Despite the court ruling, no one expects voucher advocates to give up their crusade.
“The Arizona Supreme Court’s decision is wrong on both the law and on the facts,” said Tim Keller, of the Institute for Justice. “For decades the Arizona Supreme Court has said that neutral programs based on parental choice are constitutional. School choice programs aid families and children by empowering parents to choose from a broad range of private schools.”
When the idea of vouchers surfaced in the 1980s, it was touted as a solution for students struggling in public schools.
But according to multiple studies of the Milwaukee and Cleveland programs, voucher students do no better in reading and math than kids who stay in public schools.
According to a study conducted by the U.S. Department of Education, and released in June 2008, voucher students attending private schools in Washington, D.C., performed at the same level on reading and math tests as students who have remained in the public school system. A more recent study found mixed results.
The District of Columbia program, implemented by President George W. Bush, may expire after this school year. Americans United has urged Congress to discontinue federal funding.
Even long-time advocates of vouchers are backing down. An article in the April 2008 issue of Washington Monthly concluded that “some stalwart advocates of vouchers have either repudiated the idea entirely or considerably tempered their enthusiasm for it.” The article cited former Milwaukee superintendent Howard Fuller, who admitted, “It hasn’t worked like we thought it would in theory.”
Several public school organizations also joined in with Americans United and other civil liberties activists in celebrating the Arizona decision.
“Vouchers are not sound education policy,” said Panfilo H. Contreras, executive director of the Arizona School Boards Association. “They divert funds from an already strapped system and channel them to private organizations that, unlike public schools, are not required to be accountable for how the money is spent or the level of achievement that results.”
Yet Arizonans are not through with vouchers yet. Proponents plan to lead a campaign to amend the state constitution. And, as predicted, a universal voucher bill for all students in the state – not just those with disabilities or in foster care – was introduced in the House of Representatives this session. (HB 2068)
In light of the Arizona Supreme Court’s decision and in a time of scarce resources, many advocates of public education are hopeful the legislature will use those funds on the public school system and forget about vouchers.
“We think it’s entirely the wrong road to be on,” said schools attorney Peters. “Vouchers could just eviscerate the public schools.”