Clint Bolick

School Vouchers: Constitutionally Permissible in Arizona

Posted on March 08, 2004 | Type: Policy Report | Author: Clint Bolick
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EXECUTIVE SUMMARY

Arizona's public education landscape offers a plethora of choices, from open public school enrollment to charter schools to private school scholarships funded by income tax credits. The one missing ingredient is school vouchers, which would provide private school opportunities to children whom the public schools are not serving well.

Some school voucher opponents argue that regardless of the fact that the U.S. Supreme Court has given its constitutional blessing to school vouchers, the Arizona Constitution's prohibitions on religious establishment preclude such options. That argument is incorrect.

Roughly 30 state constitutions, including Arizona's, contain "Blaine amendments," which forbid public funding for the support of religious schools. Those amendments have a sordid pedigree, tracing their origins to anti-Catholic bigotry in the late 19th century.

Fortunately, in light of that history, the Arizona Supreme Court has repudiated a broad interpretation of those provisions that would foreclose educational options to children who need them. In Kotterman v. Killian, the court upheld scholarship tax credits against challenges under both the First Amendment and the state constitution. In the process, the court embraced a constitutional framework in which indirect aid such as school vouchers is permissible if religious schools are only one of the available educational options, and if public funds reach religious school coffers only upon the independent decisions of parents. A voucher program could readily be adopted in Arizona to conform to those criteria.

Arizona policymakers should move to fulfill the promise of educational opportunities by adopting school vouchers. If they do, they will find that the Arizona Constitution, which recognizes education as a fundamental right, does not present an obstacle.

Read School Vouchers here.

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