School Choice in Arizona’s Courts

For years, Arizona has been a national leader when it comes to helping students take advantage of the best available educational opportunities. Fifteen years ago, the state adopted open enrollment for public schools and introduced charter schools to the state. A couple of years later, Arizona added a tax credit scholarship program that encouraged taxpayers (and, more recently, businesses) to make charitable donations for scholarships that would help families send their children to schools they might not otherwise be able to afford. And, three years ago, the state passed two limited scholarship programs designed to help special needs students and students in foster care. As a result, tens of thousands of families have had educational options that are denied to families in other states.

Unfortunately, Arizona’s array of educational options has also made it a hotbed of litigation as teachers’ unions and other school choice opponents have brought legal challenge after legal challenge in a desperate effort to force the scholarship recipients back into the public school system. The legal arguments focus primarily on the meaning of two sections of the Arizona Constitution. Article 2, section 12, states in part that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” Article 9, section 10, states that “[n]o tax shall be laid or appropriation of public money made in aid of any church, or private or sectarian school, or any public service corporation.”

Ten years ago, the Arizona Supreme Court ruled in Kotterman v. Killian that the tax credit scholarships did not violate these provisions. The court specifically rejected the plaintiffs’ argument that offering a tax credit for charitable donations to scholarship organizations was the same as cutting a check from the state treasury. Instead, the court noted that citizens’ money only becomes the property of the state once the state collects it in the form of taxes — so funds that the state chooses not to collect can never properly be classified as “public money,” as contemplated in the Arizona Constitution.

The Kotterman decision went even further, however, saying that even if the programs at issue involved the use of public funds, the resulting “benefits to religious schools are sufficiently attenuated to foreclose a constitutional breach.” The court pointed out that the students and the taxpayers were the beneficiaries of the program because they were the only ones who could claim any rights under the program’s provisions — any benefit to a private or religious school was entirely dependent on the decisions made by others, and could not be attributed to the state.

Despite the Kotterman decision, opponents of school choice have continued to bring lawsuits challenging the constitutionality of Arizona’s various programs. Last week, the Arizona Court of Appeals correctly rejected yet another claim that the state’s tax credit scholarships were unconstitutional. Today, however, the Arizona Supreme Court departed from the sound reasoning offered in Kotterman and held instead that the state’s scholarship programs for special needs and foster care students violated the Arizona Constitution.

Cain v. Horne, the case dealing with the special needs and foster care scholarship programs, once again brought attention to Article 2, section 12, and Article 9, section 10, of the Arizona Constitution. The primary difference between the facts in Cain and the facts in Kotterman is that the Cain scholarships were drawn from the state treasury, as opposed to being the result of private donations. This being the case, no one disputed that these were public funds being offered for the students’ use. While the Cain court made brief reference to the question of whether religious schools’ participation could render the programs invalid, it never offered an answer to that particular question. Instead, the court focused on Article 9, section 10, determining that the scholarship programs were unconstitutional because they “transfer state funds directly from the state treasury to private schools.”

Thus, according to the court, any program that would result in public funds running to a private organization (whether religious or non-religious) would run afoul of the Arizona Constitution. As pointed out above, the Kotterman court had specifically rejected this argument because the scholarships were offered for the benefit of individuals, not schools. But the Cain opinion never even referenced that part of the Kotterman opinion, nor did it offer a basis for rejecting Kotterman‘s reasoning.

Unfortunately, this case is not likely to be appealed to the U.S. Supreme Court. The interpretation of a state constitution is the sole province of that state’s courts unless a decision implicates rights protected under the U.S. Constitution. Given that the Arizona Supreme Court very carefully avoided using the Arizona Constitution’s religion clause to strike down the programs (which would have raised a legal question under the United States Constitution), the U.S. Supreme Court would likely say that it has no jurisdiction to reconsider the outcome of this case.

The positive note for Missouri in all of this is that the most serious school choice proposals in this state are more similar to the tax credit scholarships that Arizona’s courts have upheld. Even though the Arizona Supreme Court ignored part of Kotterman‘s reasoning, it seemingly reaffirmed Kotterman‘s position that tax credit scholarships do not involve the use of public funds and, therefore, do not violate the Arizona Constitution. As I have said before, if Missouri were to adopt a tax credit scholarship program, Missouri’s courts should similarly find that such a program is permissible under our own state constitution.