Legal Clips, [May 2008]An Arizona intermediate court of appeals has struck down two new state voucher programs for foster and disabled children as violating the state constitution’s “Aid Clause.” That clause provides: “No 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.” However, the court ruled the programs did not violate the state constitution’s “Religion Clause,” which provides: “No 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.” In February 2007, Virgel Cain and others filed suit, challenging the constitutionality of the voucher programs and seeking to enjoin Arizona Superintendent of Public Instruction Tom Horne from implementing them. The trial court dismissed the suit, finding that the programs violated neither the Religion nor the Aid Clause. The plaintiffs appealed.
The appellate court reversed the trial court and remanded the case for further proceedings. The appeals court first agreed with the trial court that the voucher programs did not run violate the Religion Clause, citing two Arizona Supreme Court cases, Community Council v. Jordan, 432 P.2d 460 (Ariz. 1967), and Kotterman v. Killian, 972 P.2d 606 (1999), that suggested that Arizona’s Religion Clause was “virtually indistinguishable from the United States Supreme Court’s interpretation of the federal Establishment Clause.” Arizona’s voucher programs were akin to the Ohio program the U.S. Supreme Court upheld in Zelman v. Simmons-Harris, 536 U.S. 639 (2002), the court found, and “[l]ike the Ohio program and the measures challenged in Jordan and Kotterman, the statutes at issue here are facially neutral and favor neither one religion over another nor religion over nonreligion.” As in Zelman, the state court concluded that parents and children make an independent, personal choice to direct the funds to a particular school, which may be either religious or secular and that the programs thus do not result in the appropriation or application of public money to “any religious worship, exercise or instruction or to the support of any religious establishment.”
However, the court went on to determine that the state’s disbursement of benefits under the programs does “precisely what [the Aid Clause] forbids.” The court distinguished the Jordan and Kotterman decisions as to this point, finding that the facts were different in those cases. Pointing out that “states with constitutional provisions similar to ours have uniformly rejected the notion that schools are not aided by tuition payments,” the court in this case rejected the argument that the voucher payments merely represent indirect aid to private schools because they go to students and their parents, who then make the payment to the schools. This method of disbursing the funds was an attempt to circumvent the intent of the constitution by doing indirectly what the state could not do directly, the court concluded. “Only by ignoring the plain text of the Arizona Constitution prohibiting state aid to private schools could we find the aid represented by the payment of tuition fees to such schools in this case constitutional.” Having invalidated the programs on these grounds, the court declined to address whether the programs also violate the Arizona Constitution’s requirement for the “establishment and maintenance of a general and uniform public school system.”
Cain v. Horne, No. 07-0143 (Ariz. App. Div. Two, May 15, 2008)
[Editor’s Note: Background on the suit, including a link to NSBA’s amicus brief, is below. Noting that the “parties devote a significant portion of their briefs discussing the question whether the constitutional provisions at issue in this case are so-called ‘Blaine amendments’ ” originally motivated by anti-Catholic nativist sentiment, the court found that “none of the parties has produced any authority suggesting we may disregard constitutional provisions merely because we suspect they may have been tainted by questionable motives. We thus agree with the position of the National School Boards Association, expressed in its amicus brief, that this question ‘is irrelevant to the resolution of this case.’ ” It is a rare thing for amicus advocates get even such a fleeting concrete indication from a court of the impact of their efforts. Lead authors on NSBA’s brief were Lee Stein and Elizabeth J. Kruschek of Perkins Coie Brown & Bain P.A. in Phoenix, whose service was pro bono. The other links below are to additional information on “Blaine Amendment” debates. Courts in Colorado and Florida have struck down voucher programs on other state constitutional grounds, frustrating the hopes of voucher proponents to frame the issue as one of religious intolerance.]
NSBA School Law pages on Cain v. Horne
NSBA School Law pages on Blaine Amendment debates
School Board News, 6/2008, By Stacey Hollenbeck
NSBA Voucher Strategy Center