The Arizona Supreme Court is being asked to void a new law that, for the first time, provides tax dollars directly to private and parochial schools.
The lawsuit filed Tuesday on behalf of individual Arizonans and two national groups, contends the voucher program, approved in June by state lawmakers, is directly contrary to a state constitutional provision which bars the use of public funds “in aid of ... any private or sectarian school.” And a separate section specifically says “no public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction.”
Attorney Don Peters said it is too late to stop the vouchers this school year. But he wants the state’s high court to block state officials from giving out any more tax dollars.
The lawsuit, brought by the American Civil Liberties Union and People for the American Way, could create heartburn for state Superintendent of Public Instruction Tom Horne, named as a defendant in the case along with state Treasurer David Petersen.
Horne has repeatedly said he believes that vouchers are illegal. And he told Capitol Media Services on Tuesday that he has seen nothing in the interim to change his mind.
But Horne said that he cannot speak out publicly about this challenge because the state Attorney General’s Office is legally obligated to defend all laws — and he cannot be in the position of undermining the state’s case, no matter what his personal beliefs.
Even Gov. Janet Napolitano, who agreed to sign the legislation as part of the budget deal, believes Peters may have a case.
“I believe there’s a good argument they are not (constitutional),” Napolitano said. “But as I said at the time, the courts are going to have to decide this.”
The possibility that state officials may provide a lessthan-enthusiastic response to the lawsuit has caused the Institute for Justice, which supports vouchers, to jump into the fray. Tim Keller, executive director of the institute’s Arizona chapter, said he believes the program is legal and he will defend it in court.
On paper, the amount of money involved is small: $2.5 million for vouchers for children with physical, emotional or learning disabilities, and an identical amount for up to 500 foster children. That is out of nearly $3.8 billion going to education spending.
But Peters said it still amounts to the use of state tax dollars to support private and parochial schools.
And backers have acknowledged that if the legality of these programs is upheld, they will seek to allow even more parents to have tax vouchers to send their children to private schools.
Keller acknowledged the constitutional prohibition. But he said these vouchers are legal.
“The program is not created to benefit private or parochial schools,” he said. “The program is designed to benefit children.”