Its round one in the battle over school vouchers for children with disabilities and children in foster care, programs signed into law last year by Governor Janet Napolitano.
The opponents make two arguments. First, they rely on the states Blaine Amendment, which prohibits financial support of sectarian schools. The amendment traces back to an effort to prevent funding for the Catholic schools favored by European immigrants. But as the Arizona Supreme Court held in sustaining scholarship tax credits in Kotterman v. Killian in 1999, aid to children whose parents may direct it to any school they wish is not support of religious or private schools.
Opponents also argue that the states constitutional guarantee of access to uniform public education precludes anything above and beyond. But, that argument ignores the purpose of the uniformity clause--to establish a baseline, not a ceiling, for educational opportunities--as well as the urgent need to make alternatives available for children with special needs.
That a state constitution that creates a fundamental right to education could be wielded against its intended beneficiaries makes for a perverse spectacle. Lets hope the courts will see this legal challenge for the charade it is.
Clint Bolick is director of the Goldwater Institute Center for Constitutional Litigation.
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-Arizona Republic: Child is seen as threat to public schools