(Guest Post by Matthew Ladner)
The Arizona Court of Appeals rendered a unanimous ruling in favor of the Empowerment Scholarship Accounts program, which you can read here. In so doing, they completely rejected all of the arguments made by those seeking to destroy the program.
Congratulations to our crack legal-eagles at the Institute for Justice, Goldwater Institute and Arizona Attorney General’s Office. If you are not in the mood to read a long legal decision, here are some highlights drawn out by Jonathan Butcher. The Cain decision is the Arizona Supreme Court decision which found vouchers unconstitutional on the basis of our Blaine amendment. The Appeals Court however finds very big distinction between ESAs and vouchers:
The parents of a qualified student under the ESA must provide an education in reading, grammar, mathematics, social studies, and science. Whether that is done at a private secular or sectarian school is a matter of parental choice. The ESA students are pursuing a basic secondary education consistent with state standards; they are not pursuing a course of religious study.
The ESA does not result in an appropriation of public money to encourage the preference of one religion over another, or religion per se over no religion. Any aid to religious schools would be a result of the genuine and independent private choices of the parents. The parents are given numerous ways in which they can educate their children suited to the needs of each child with no preference given to religious or nonreligious schools or programs. Parents are required only to educate their children in the areas of reading, grammar, mathematics, social studies, and science.
Where ESA funds are spent depends solely upon how parents choose to educate their children. Eligible school children may choose to remain in public school, attend a religious school, or a nonreligious private school. They may also use the funds for educational therapies, tutoring services, online learning programs and other curricula, or even at a postsecondary institution.
The specified object of the ESA is the beneficiary families, not private or sectarian schools. Parents can use the funds deposited in the empowerment account to customize an education that meets their children’s unique educational needs.
Thus, beneficiaries have discretion as to how to spend the ESA funds without having to spend any of the aid at private or sectarian schools.
Thus, unlike in Cain II, in which every dollar of the voucher programs was earmarked for private schools, none of the ESA funds are preordained for a particular destination.
The supreme court has never interpreted the Aid Clause to mean that no public money can be spent at private or religious schools.
This program enhances the ability of parents of disabled children to choose how best to provide for their educations, whether in or out of private schools. No funds in the ESA are earmarked for private schools.
First, the ESA does not require a permanent or irrevocable forfeiture of the right to a free public education.
All the ESA requires is that students not simultaneously enroll in a public school while receiving ESA funds. This same restriction applies to any children who attend private school or are homeschooled.
Second, parents are not coerced in deciding whether or not to participate in the ESA…Parents are free to enroll their children in the public school or to participate in the ESA; the fact that they cannot do both at the same time does not amount to a waiver of their constitutional rights or coercion by the state.
Finally, the ESA does not limit the choices extended to families but expands the options to meet the individual needs of children.
One of the three judges had previously found vouchers unconstitutional. Next stop- Arizona Supreme Court for what will be the only binding legal decision. So far, so good.