Jillian Bandes

State laws that prohibit school boards from giving money to private educational institutions are now the reason disabled kids in Arizona can no longer attend specialized classes that meet their needs.

A unanimous Arizona Supreme Court ruling on Wednesday held that vouchers were illegal in their state, and the children who used them to attend private, specialized schools can no longer do so. That’s because the private schools could violate stipulations that are attached to public money, such as regulations on gender discrimination, politicized instruction, or separation of church and state. Students had used the vouchers since 2006, but will have to relinquish them at the end of 2009.

Most other states have circumvented these laws, but Arizona, along with Alaska, has specific codes that make it more difficult for public money to go to private voucher programs.

“I don’t know how else to say it other than it was absolutely heartbreaking,” said Tim Keller, Executive Director of the Institute for Justice Arizona Chapter, the organization that defended the voucher program. The Institute gave examples of numerous children whose lack of success in traditional classrooms had been reversed with individualized instruction.

Keller credits a change in the court’s makeup with the change in direction. Previous courts had ruled that vouchers direct money towards individuals, who make a choice as to where to spend it – circumventing the payment of public money towards private institutions.

Don Peters, the lead attorney against the vouchers, said that was a tenuous assumption.

“No one knows what the supreme court from ten years ago would’ve said, but I know [his opposition] would’ve rather have had the court from 10 years ago.”

He also said that previous rulings only applied to tax credits for education, which were different than vouchers.

“Vouchers are not tax credits. The money never reaches the public treasury,” he said.

That delineation isn’t a valid one, according to Ilya Shapiro, Senior Fellow in Constitutional Studies at the Cato Institute. He said that the Supreme Court has upheld programs that allowed private institutions to receive state funds as a result of recipients private choices.

“The Arizona Supreme Court missed that the key element of the challenged programs was not religion but choice. That is, not one dollar reaches a religious (or other private) school without a parent deciding to spend it there,” said Shapiro.


Jillian Bandes

Jillian Bandes is the National Political Reporter for Townhall.com