Arizona Supreme Court Holds That School Voucher Programs Violate Article 9, Section 10 of the Arizona Constitution.

In 2006, the Legislature enacted two programs that appropriated state monies to allow students to attend private schools of their choice instead of the public school in their school district.  The Arizona Scholarship for Pupils with Disabilities, codified at A.R.S. §§ 15-891 to 15-891.06, offers pupils with disabilities the opportunity to attend any public school of the pupil’s choice or to receive a scholarship to any qualified school of the pupil’s choice.  The Displaced Pupil’s Grant Program, codified at A.R.S. §§ 15-817 to 15-817.07,  permits the state to pay $5,000, or the cost of tuition and fees, whichever is less, for children in foster care to attend the private primary or secondary school of their choice.  Both sectarian and non-sectarian schools may participate in both programs (the “voucher programs”), and under both, the parents or legal guardians of the pupils select the school their children will attend.

Plaintiffs filed suit in Maricopa County Superior Court seeking to enjoin the implementation of the voucher programs alleging that they were unconstitutional under Article 2, Section 12, and Article 9, Section 10 of the Arizona Constitution.  Article 2, Section 12 prohibits public money from being “appropriated to any religious worship, exercise, or instruction, or to the support of any religious establishment.”   Article 9, Section 10 provides that “no tax shall be laid or appropriation of money made in aid of any church, or private or sectarian school, or any public service corporation.’ 

Defendant and other intervenors moved for judgment on the pleadings, which the superior court granted.  On appeal, the Arizona Court of Appeals held that the voucher programs did not violate Article 2, Section 12 of the Arizona Constitution, which it termed the “Religion Clause,” but did violate Article 9, Section 10 of the Arizona Constitution, which it termed the “Aid Clause.” Defendant appealed the finding that the voucher programs violated the Aid Clause; Plaintiffs cross-appealed the finding that the voucher programs did not violate the Religion Clause.

The Supreme Court held that the voucher programs violate Article 9, Section 10 of the Arizona Constitution (the Aid Clause) and therefore did not reach the question of whether they violated Article 2, Section 12.  On appeal, Defendant and Intervenors argued that under the Court’s prior case law, the Aid Clause should be interpreted in the same manner as the federal Establishment Clause, and therefore, the voucher programs are saved by the fact that parents choose which schools to send the money to.  The Court disagreed, reasoning that the Aid Clause encompasses more than the Religion Clause (which has been interpreted in the same manner as the federal Establishment Clause) and that the two clauses serve different purposes.  While the Aid Clause seeks to protect public schools by prohibiting the appropriation of public funds to private schools, the Religion Clause addresses the issue of separation of church and state.  The Court distinguished the voucher programs from the program in Kotterman v. Killian, where tax credits for contributions to organizations that provide scholarships to private schools were found constitutional because the voucher programs use funds withdrawn from the public treasury as opposed to tax credits.  The Court further disagreed with Defendant and Intervenors’ argument that under the true beneficiary theory, the pupils are the beneficiaries of the public funds, not the schools.  The Court explained that applying this theory would nullify the Aid Clause’s clear prohibition against the use of public funds to aid private or sectarian education.           

Justice Ryan authored the opinion, Justices Berch, Hurwitz, and Bales, and Judge Timmer concurred.  Chief Justice McGregor did not participate in the case.