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Five Arizona families, represented by the Institute for Justice, have intervened in the first-ever legal challenge filed against school choice programs for special needs and foster children. Three other states, Florida, Utah and Ohio, provide scholarships to more than 16,000 special needs children-and none of those programs have been subject to legal challenge.

Opponents, including the ACLU Foundation of Arizona and People for the American Way, filed an original action with the Arizona Supreme Court, seeking to bypass the trial court. The Court will consider the case tomorrow, January 9, and parents are urging the Court to either require the case be filed in the trial court, where a full factual record about the programs can be developed, or uphold the programs as consistent with the Arizona Constitution.

The lawsuit relies on recycled legal claims that the Arizona Supreme Court has already rejected and that are inconsistent with the State’s longstanding history of offering educational alternatives for K-12 and college education, including educational voucher programs.  A report authored by IJ’s Director of Strategic Research, Dr. Dick Carpenter II, and released last week, details Arizona’s little-known voucher programs that for years have offered public aid to needy Arizonans to spend on the service provider of their choice-public, private or religious-just like the challenged school choice programs.

Private Choice in Public Programs: How Private Institutions Secure Social Services for Arizonans explains that Arizona operates at least six separate educational aid programs that help students in public, private and religious schools. And two of them specifically support services for foster children and children with disabilities. The only difference between the existing programs and the new scholarships is that bureaucrats decide when a private school is appropriate, instead of parents. The new program simply removes bureaucratic red tape and puts parents in control. The six existing educational aid programs currently serve more than 22,000 students a year, totaling nearly $22 million in publicly funded scholarships-far outstripping the $5 million allotted for the new scholarships for special needs and foster children.

The report exposes the lawsuit filed by school choice opponents as nothing but an attempt to use the courts to stop a policy they dislike. If Arizona’s many other voucher programs are constitutional, as choice opponents apparently concede by not challenging them, why aren’t publicly funded scholarships for foster and disabled children?

As for the legal claims, the ACLU and PFAW claim the Arizona Constitution’s Blaine Amendment and education provisions prohibit any public support of families who freely choose private religious or non-religious schools. IJ explains in its brief why that argument is inconsistent with Arizona legal precedent, and the new report shows why it is inconsistent with reality: Arizona already offers public aid to students private religious and non-religious schools.

Arizona’s Constitution and educational history are very favorable to school choice. In upholding Arizona’s individual tax credit for donations to scholarship organizations in 1999 in Kotterman v. Killian, the Arizona Supreme Court understood that school choice programs aid parents-not schools, religious or otherwise. The court recognized the Blaine Amendments as a "clear manifestation of religious bigotry," refusing to strike down school choice on that basis.

The new scholarship programs are also in harmony with the Arizona Constitution’s education article, which provides for public K-12 schools and universities. Not once has the Arizona Supreme Court said this article prohibits additional educational options, despite reviewing such cases, and in Kotterman, the court noted that including private schools in the mix of educational options furthers the objective of "making quality education available to all children."

The Arizona Supreme Court should decline to decide this case on the limited evidence before it and allow parents the opportunity to build a complete evidential record by requiring a full trial on a traditional legal track. With assistance from the lawyers at IJ, the parents and children who so desperately need school choice do not intend to allow opponents thwart these new, meaningful educational opportunities.

Tim Keller is the Executive Director of the Arizona Chapter of the Institute for Justice, the nation’s leading legal advocate for school choice, which is also currently defending Arizona’s new corporate tax credit scholarships in state court and the individual tax credit scholarships program in federal court. IJ helped secure the Kotterman victory for school choice in Arizona. IJ also helped win a victory in the U.S. Supreme Court for school choice, representing parents in Cleveland’s school choice program, and successfully defended vouchers in Milwaukee and tax credits in Illinois.