This newspaper got two things right in discussing the recent appellate court ruling on Arizona’s scholarship programs for children with special needs and foster children (“Ruling right, but issue is not over,” Our View, May 21).
First, judges should honestly apply the state Constitution to the cases before them. Arizona’s Court of Appeals claimed it was doing so when it struck down state-funded scholarships that enable children with disabilities and children in foster care to attend private schools.
However, the court’s ruling misapplies the plain language of the Constitution, disregards decades of Arizona Supreme Court precedent, and defies Arizona’s long-standing history of funding education in both private and public schools. For those three reasons, the Tribune is also correct that this case is not over.
The constitutional provision at issue says: “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.”
Plainly, the Constitution prohibits aid to private or sectarian schools. The question then is whether using state funds to purchase educational services from private schools constitutes “aid” to such schools.
According to the teachers’ unions and the special-interest groups challenging the scholarship programs, using state funds to pay for private school tuition does not “aid” private schools — so long as it is public school officials who make the decision to place students in private schools better suited to their needs. Each year, public school districts decide to educate hundreds of children with disabilities in private schools under a voucher program adopted in the 1980s.
The unions say that when school districts use state funds to pay private schools to educate children, there is no “aid” to private schools because the school is merely a vendor providing educational services. And they are right. Purchasing goods or services from a private business does not constitute “aid” to the business.
If buying services were “aid,” then the government would not be able to purchase medical services through state welfare programs from public service corporations, such as religiously affiliated hospitals. But nobody seriously believes that using public funds to pay a doctor at St. Joseph’s Medical Center to perform an operation is “aid” to Catholic Healthcare West. All private businesses need customers. But businesses are not “aided” when payment is rendered for services provided.
The challenged programs do “aid” parents and children. One aided child is Lexie Weck. Lexie’s single mom, Andrea, relies on the disability scholarship program to send Lexie to the Chrysalis Academy, a private school specializing in educating children with autism. Lexie has 30 schoolmates who fall into two categories: children placed in the school by their parents and children placed in the school by public school officials.
Both categories have this in common: State funds pay their private school tuition under state voucher programs.
The teachers unions’ argument — that it is not “aid” to use state funds to pay private school tuition when government officials control the placement decision, but it is “aid” when parents control the decision — is hypocritical and unsupported by the Arizona Constitution’s plain text.
In addition to Arizona’s long-standing practice of educating children with disabilities in private schools using public funds, there are at least five other state-funded programs that allow aid recipients to purchase educational services from private schools, including tutorial services for students struggling to pass the AIMS test.
The Arizona Supreme Court has consistently interpreted the “aid” clause to require that our courts look to a challenged program’s “true beneficiary.” Moreover, the court has already held that educational aid programs benefit families, not private schools. The Court of Appeals turned a blind eye to these decisions.
The challenged scholarship programs are already changing lives. Lexie Weck is a different little girl thanks to the education her mom is buying from Chrysalis. Nothing in the Constitution prohibits the state from aiding Lexie.
The appellate court’s ruling was wrong. Thankfully, as the Tribune said, this case is not over.
Tim Keller is executive director of the Institute for Justice Arizona Chapter, a nonprofit public interest law firm.