In an unprecedented move two weeks ago, the ACLU, the People for the American Way and the Arizona Center for Law in the Public Interest filed the first- ever legal challenge to a school choice program for children with disabilities. There are four such programs nationwide that have flourished without legal challenge. Opponents are also challenging a similar scholarship program for children in foster care.
The Arizona Supreme Court, in its 1999 Kotterman v. Killian decision upholding a school choice program from a nearly identical legal attack, declared Arizona's Blaine Amendment (a basis for that suit and the new one) a clear manifestation of religious bigotry, and said that school choice programs that allow parents to choose among a wide array of schools, including religious schools, are constitutional.
Oddly enough, this new lawsuit only challenges those scholarship programs that empower parents to choose a private education. For decades, Arizona has funded private school tuition for children with disabilities whose needs cannot be met by public schools. But under the old voucher program, education bureaucrats decide when private placement is appropriate. This lawsuit is not about opposition to vouchers, but rather opposition to shifting power from government to parents.
The lawsuit asks Arizona's Supreme Court to accept original jurisdiction over the case, bypassing the trial court and thereby preventing parents and children from developing a fact record in support of the programs. The Justices will decide on January 4 whether to hear the case or require that it proceed along a traditional legal track. Lets hope they decide that scholarship families deserve their day in court.
Tim Keller is the executive director of the Institute for Justice Arizona Chapter which represents five scholarship eligible families who will file a motion to intervene in the pending Supreme Court case to defend the programs from this latest legal attack. Mr. Keller is an occasional writer for the Goldwater Institute.