Innovative Arizona school choice program faces legal challenge

Stuart Buck

Guest blogger Stuart Buck is the author of Acting White: The Ironic Effect of Desegregation,
published by Yale University Press in May 2010.  He is currently a
Distinguished Doctoral Fellow in the Education Reform department at the
University of Arkansas.

The Arizona Empowerment Scholarship
program should serve as a model for other states. Like other states’
voucher programs, it gives parents of special education students in
public schools the chance to send their children to private school. But
it does so in a novel manner: it gives parents access to a special bank
account in which the state deposits 90% of the money that the state
would have spent on that student’s education. Parents can then spend
that account on private schools, tutoring, and services that best help
their child. Indeed, parents even have the option of saving the
left-over money for college education, if they’re able to find a more
efficient K-12 school.

This innovative program both saves the state money and gives families
the chance of finding a better fit for a special education child who
may not always be well-served by the public school in the parents’
neighborhood. Who could object?

Entrenched special interest groups. Unfortunately, like the voucher program
that preceded it, the new Empowerment Scholarship program is under
legal attack. The Arizona School Boards Association, the Arizona
Education Association and the Arizona Association of School Business
Officials filed a lawsuit
that was just heard before an Arizona state court on Monday, Nov. 28,
2011. The lawsuit is based on a 1910 provision in the Arizona
Constitution stating that “[n]o 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.” This provision was likely inspired
in part by the early 20th century nativist bigotry towards Catholicism.

Does this lawsuit have any chance of success? That is hard to predict, but there are glimmers of hope. In a 2009 case (Cain v. Horne),
the Arizona Supreme Court struck down the previous special education
voucher program based on this same constitutional clause. The problem
with the Arizona voucher program was that it transferred “state funds
directly from the state treasury to private schools,” and the Arizona
Constitution “does not permit appropriations of public money to private
and sectarian schools.”

But even the Arizona Supreme Court acknowledged that “there may well
be ways of providing aid to these student populations without violating
the constitution.” Moreover, the new Empowerment program was designed
with the Arizona Supreme Court’s ruling specifically in mind: rather
than giving every cent to private schools, the new program gives money
directly to parents, who have the choice to spend money on a wide
variety of services, tutoring (including tutoring from public school
teachers), curriculum, college expenses, and yes, private schools.

Since private schools are just one among many options selected freely
by parents, the Arizona government is not making an “appropriation” to
private schools any more than when Arizona state employees spend part of
their state salaries to send their own children to private schools.

Thus, if the Arizona courts properly apply their own precedents, they
will reject the attempt by powerful interest groups to stiff-arm
special education students.

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