Private school public funing bill on governor's desk
PHOENIX -- A bill on the desk of Gov. Jan Brewer seeks to allow indirectly what Arizona courts have banned directly: Giving parents public funds to send their children to private and parochial schools.
SB 1553 would require the state treasurer to set up a special account that parents of students could tap to pay the tuition and fees for their children. The aid would be equal to 90 percent of what the state would otherwise pay in state aid to send that child to a public school.
State aid varies by both student grade level and extras for special needs, ranging from disabilities to coming from a home where English is not spoken. It can run anywhere from $5,000 to $9,000 a year.
At this point, the legislation which already has been approved by both the House and Senate is designed to help only students with "special needs,' mainly foster children and those who are disabled. But Sen. Rick Murphy, R-Glendale, acknowledged that if this plan passes legal muster, it would become the template for providing the same options for the more than one million students now in public schools.
The measure is designed to replace a 2006 law which provided the same group of students with direct vouchers -- checks from the state -- that their parents could use to purchase an alternative education for their children. In striking it down two years ago, the Arizona Supreme Court called it ``a well-intentioned effort' to assist students with special needs.
"But we are bound by our constitution,' wrote Justice Michael Ryan in the 2009 ruling. He said there is no way the program can be reconciled with a specific constitutional ban against appropriating public funds in aid to private and parochial schools.
This new plan also would use state funds. But Murphy said this is different.
The key, he said, is that the money would not flow directly from the state treasury to the private and parochial schools. Instead, it would go into a special account that parents of eligible children could use to get ``scholarships' to these same schools.
Murphy said that gets around the constitutional prohibition because the parents are the ones making the decision of how to spend the money.
"A voucher is different in the sense that the parent is making the choice but the state is actually the one divvying out the money,' he said.
"In this particular case ... the state is not even cutting the check' to the private school,' Murphy continued. ``They are not part of the process whatsoever in determining how the money is spent other than the law says it has to be spent on education for that particular student.'
There are some other requirements, including that the students do not attend public schools and that they not also be getting money from scholarships financed by a separate tuition tax credit program that the U.S. Supreme Court has so far concluded is legal. And parents also have to sign an agreement ensuring that the child receives instruction in reading, math, social studies and science.
Whether this plan proves any more constitutional than the one the Supreme Court voided in 2009 remains to be seen.
Andrew Morrill, president of the Arizona Education Association, which successfully challenged the voucher law, said attorneys for his organization are reviewing this measure.
"They seem to have worked their way around the objection in the voucher case,' he said.
Morrill conceded that during Supreme Court debate on the voucher bill, one of the attorneys for challengers told the justices that the plan might be legal if the money went directly to the parents and not the schools -- precisely what is being proposed here. But he said that concession by a lawyer does not automatically make Murphy's plan legal.
But that distinction may prove crucial.
"These programs transfer state funds directly from the state treasury to private schools,' Ryan wrote in voiding the original voucher bill -- an element not present in the new plan.
The justices, in that ruling, did give supporters of vouchers and similar programs a road map of how to make them legal: persuade voters to amend the state constitution to alter or repeal the ban on funding for private and parochial schools. Murphy, however, said supporters of vouchers and similar plans have been unwilling to take the chance that the vote might not go their way.
"Because of the stakes, you're going to have a whole bunch of national money on the side of the status quo to keep the protectionist racket for the public schools that don't want to innovate and don't want accountability,' Murphy said. "You're going to have a hard time raising commensurate dollars from the much wider variety of people who have less of a vested interest in actually having the change.'
If and when this legislation is challenged, the issues are likely to be the same as the voucher case.
Supporters of the vouchers argued there was no constitutional violation because the funds were not going to ``aid' the schools. They said any aid was for the parents of the children, with any benefit to schools ``purely coincidental.'
And courts have upheld the ability of governments to use tax dollars to get non-religious services, even from religious groups.
Ryan, however, said what was being proposed was different.
"The voucher programs do not provide reimbursement for contracted services,' the justice wrote.
"In fact, they are designed in such a way that the state does not purchase anything,' he continued. "Rather, it is the parent or guardian who exercises sole discretion to contract with the qualified school."