A judge has ruled the state can implement a new law giving some parents access to state funds to send their children to private and parochial schools, potentially paving the way to make vouchers available for all of the more than one million children now in public schools.
In a ruling released Thursday, Maricopa County Superior Court Judge Maria del Mar Verdin refused to grant a request by the Arizona Education Association and other groups to block implementation of "empowerment scholarships." She said there is a "strong showing" the law does not violate a constitutional provision which specifically bars state aid to private and parochial schools.
Verdin also concluded the program, approved last year, likely does not run afoul of another constitutional section banning the use of public money for religious worship, exercise or instruction even though parents could use the scholarship proceeds for a religious education.
The judge acknowledged that the Arizona Supreme Court voided a similar program three years ago. And in both cases, state funds can find their way into private schools.
But she accepted arguments by state officials that there are "substantive differences" in how the two programs operate. And those differences, Verdin said, are enough to pass constitutional muster.
The plan that Verdin upheld is a relatively small program, designed to help only students with special needs, such as children who had been in foster care and those with disabilities. But Sen. Rick Murphy, R-Glendale, conceded that once all the legal hurdles are overcome, he wants the program to become the template for providing the same option for children statewide.
Verdin's ruling is not the final word. While she refused to issue an injunction, she left the door open to being convinced otherwise after a full trial. And whoever loses in court is virtually certain to appeal.
AEA President Andrew Morrill said he and the AEA's lawyers are still studying the ruling. He said an appeal is possible.
Legal issues aside, Morrill said the legislation is bad policy.
"At a time when resources are absolutely scarce, when public schools are badly funded, this makes no sense," he said. "This still is the wrong direction for Arizona."
The legislation required the state treasurer to set up a special account that parents could tap to pay tuition and fees for their children. The aid is equal to 90 percent of what the state would otherwise pay in state aid to send that child to a public school.
State aid can vary by both grade level and extra stipends for special needs, ranging from disabilities to coming from a home where English is not spoken. It can run anywhere from about $5,000 to $9,000 a year.
Morrill said that does not mean this plan actually saves money for taxpayers, calling any claim of savings "fuzzy."
The program also has some other requirements, including that the students not attend public schools. They also can't get any money from scholarships financed by a separate tuition tax credit program that has been ruled legal. Parents also have to sign an agreement ensuring the child receives instruction in reading, math, social studies and science.
In the 2009 ruling striking down a similar program, the state's high court said the constitutional ban against aid to private and parochial schools is absolute.
Verdin said this new program is different.
It creates an account for the student where a parent can choose to fund various educational services and programs. More to the point, she noted, unlike the earlier voucher program where the funds were turned over directly to the private or parochial school, this allows parents to tap that fund, as needed, for expenses from various sources.
"The exercise of parental choice among education options makes the program constitutional," Vedin wrote.
Several groups supporting the new education program praised the decision.
"We will continue to defend the Empowerment Scholarship Account Program when the teachers' unions and their allies choose to appeal this decision," said the Institute for Justice's Tim Keller. "We will go all the way to the Arizona Supreme Court if that is what it takes to make sure this program remains in effect."
Meanwhile, the Arizona School Boards Association, which is joining AEA in the lawsuit, said an appeal will be made.
"We will proceed with confidence that these kinds of accounts do violate the Arizona Constitution," said ASBA spokeswoman Tracey Benson.
Tribune reporter Michelle Reese contributed to this story.