Voucher rule extends beyond disabled, foster kids

As the Arizona Supreme Court takes up a challenge Tuesday to two school voucher programs for disabled and foster children, the justices have to confront the fact that a common interpretation of the state constitution does not square with the reality of what public schools and other agencies have been doing for years.

The case of Cain vs. Horne is a pivotal issue in the movement to create a truly robust K-12 educational system that enables parents to select the best possible choice for their children, whether a school is government-sponsored or privately owned.

In 2006, the Legislature authorized up to $5 million to pay private school tuition for disabled and foster students who transfer from a district or charter school. The two programs are based on research and direct testimonials that private schools frequently can better serve the needs of disadvantaged students.

We are strong advocates for such school choice options. But we have acknowledged several times in the past two years that paying private school tuition appears to conflict with Article 9, Section 10 of the state constitution that says, "No tax shall be laid or appropriation of money made in aid of any church, or private or sectarian school ...." The Arizona Court of Appeals agreed earlier this year, declaring both voucher programs to be unconstitutional.

Tim Keller, a lawyer with the Institute for Justice who represents many of the families enrolled in the voucher programs, goes to court Tuesday with a compelling argument as to why the lower court ruling can't be supported. Keller notes that in decisions going back to 1967, the Supreme Court has allowed the state to contract with religious-based organizations to provide services such as welfare assistance. The state's payments aren't considered "in aid" because the religious group earns the money by performing appropriate, nonreligious tasks.

Furthermore, Arizona tax dollars have been going to private schools for some time. College and vocational scholarships have been funded for years. And thousands of special-needs children have been sent to private campuses by local school districts that couldn't teach these kids in their own classrooms.

Perhaps all of those other programs also violate the intent of the authors of the state constitution. That would be a shame, but it would be the only rational outcome if the Supreme Court affirms that the two voucher programs can't continue.