Supporters of tax-funded vouchers asked the Arizona Supreme Court on Tuesday to rule they are legal despite a constitutional provision banning the use of public funds for private and parochial schools.
Attorney Tim Keller from the Institute for Justice acknowledged that the vouchers essentially are checks drawn on the state treasury given to parents. And those checks are made out to - and can be cashed by - only a nonpublic school for a child's tuition, fees and other costs.
Keller told the justices, however, that the true beneficiaries of those state funds are not the schools but the children who are getting the education.
In this case, he said, one voucher program being challenged by education groups and others is specifically for children with special needs; the other is for foster children. Keller said the parents he represents send their children to private and parochial schools after concluding they cannot get educated at public schools.
But Justice Andrew Hurwitz pointed out that the legal fight is a lot bigger: If the high court upholds the legality of these vouchers, it would open the door to the Legislature allowing all parents to get tax dollars to send their children to private and parochial schools.
Central to that fight is the meaning of the constitutional prohibition barring aid to private and parochial schools.
Keller, questioned by the justices, conceded the state cannot write out a check to a private school, even if the purpose of that is to help the students there. Hurwitz said he sees little difference between that and the vouchers which also are state checks payable to the same schools.
"It's not the parents' money," the justice said. "They get to direct it. But they don't own it."
Keller, however, countered that the vouchers are "direct aid to the individual" and not to the school.
"But they can't cash that check," Hurwitz responded.
Justice Michael Ryan said the argument goes beyond the question of what is "aid" to these schools. He noted the vouchers can be used at parochial schools which are free to discriminate in admitting students based on religious preferences and can insist that all students attend religious worship. Ryan said another section of the Arizona Constitution prohibits the use of public funds for religious worship, exercise or instruction.
But Keller said as long as the parent is purchasing education for a child, which he said is a legitimate state function, it is immaterial that the instruction also includes religious training.
The justices gave no indication when they would rule.