PHOENIX - A bill on the desk of Gov. Jan Brewer seeks to allow indirectly something 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 could tap to pay 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 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 already approved by both the House and Senate is intended to help only students with "special needs," mainly foster children and those who are disabled. But Sen. Rick Murphy, R-Glendale, acknowledged if this plan passes legal muster, it would become the template for providing the same option to more than 1 million students now in public schools.
The measure is designed to replace a 2006 law that 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," Justice Michael Ryan wrote in the 2009 ruling. He said there is no way the program can be reconciled with a constitutional ban against appropriating public funds to aid private and parochial schools.
This new plan also would use state funds. But Murphy said this is different.
He said the key 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" doling 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 not attend public schools. They also can't get any money from scholarships financed by a separate tuition-tax-credit program that has been ruled legal. Parents also have to sign an agreement ensuring the child receives instruction in reading, math, social studies and science.
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 attorney for challengers told the justices 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.
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.