PHOENIX — A state law giving tax dollars to private and parochial schools is illegal, the Arizona Supreme Court ruled Wednesday.
The justices, in a unanimous opinion, called the programs established by the Legislature in 2006 "a well-intentioned effort" to assist students with special needs.
"But we are bound by our constitution," wrote Justice Michael Ryan. He said there is no way the program can be reconciled with a specific constitutional ban against appropriating public funds in aid to private and parochial schools.
The decision is a significant defeat for legislators who created the very small program in 2006 to test the legal waters. They hoped a ruling in their favor would pave the way for a full-blown voucher program, with every parent in the state entitled to use state tax money to send their children to any school they want.
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Ryan said there is a way to make the vouchers legal: persuade voters to amend the constitution to alter or repeal the ban.
That may be the next step.
"We will certainly consider all our options," said Tim Keller of the Institute for Justice, who tried to convince the high court the programs are constitutional.
And Ron Johnson, who lobbies on behalf of the state's Catholic bishops for the church's schools, said the question of putting the issue on the 2010 ballot may depend on what else voters will be asked to approve that year.
The legislation provides $2.5 million in state tax vouchers to the parents of former foster children who have been adopted — vouchers that can be used to pay tuition and fees at private or parochial schools. It set aside an identical amount for similar programs for disabled children.
The "vouchers" are checks, made payable to the parents, who then must endorse them over to the private or parochial school.
Attorneys for the Arizona Education Association and other public education groups sued, contending the programs ran afoul of the constitutional provisions barring use of state dollars to aid these kinds of schools.
Keller argued tax dollars were not going to "aid" the schools.
He said any aid was for the parents of the children and any benefit to the schools was "purely incidental." And, Keller said, courts have upheld the ability of governments to use tax dollars to get non-religious services, even from religious groups.
Ryan, however, said this is different.
"The voucher programs do not provide reimbursement for contracted services," the justice wrote.
"In fact, they are designed in such a way that the state does not purchase anything," he continued. "Rather, it is the parent or guardian who exercises sole discretion to contract with the qualified school."
Nor was the court persuaded by the fact the checks are given to the parents.
"These programs transfer state funds directly from the state treasury to private schools," Ryan said.
Groups that challenged the law hailed the court decision.
"The ruling will enable Arizona to put the focus on, and the full funding for, education in our state back where it should be, our public schools," Panfilio Contreras, executive director of the Arizona School Boards Association said in prepared comments. Similar statements came from other organizations.
House Speaker Kirk Adams, R-Mesa, said legislative staff attorneys are reviewing the 21-page decision. He said it may be possible to have the state keep paying for the services for the affected children using some different mechanism and without repealing the constitutional amendment.
Ryan acknowledged the Supreme Court in 1967 ruled it was permissible to use tax dollars to partially reimburse the Salvation Army, a religious organization, for providing emergency aid for those in need. What made that legal, he said, is the group was providing non-religious services to the public and simply acted as a conduit for the help and received no aid itself.
But Ryan said one thing that made that Salvation Army program legal is it covered the actual costs of the items and services provided, with nothing for administrative costs. The vouchers, he said, contain no such restriction.
Wednesday's ruling does not affect the legality of dollar-for-dollar tax credits available to individuals and businesses that provide money for scholarships for students to attend private and parochial schools.
What it says
Arizona Constitution Article 9 Section 10: 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.
