One of the major problems associated with government intrusion into the economy is the issue of what sort of projects are not acceptable uses of public money.
After all, when the government redistributes funds to individuals or corporations - or when it decides to subsidize a certain venture - it makes an inherent value judgment. But the questions remains: when the government subsidizes the choice of individuals among many options, at what point is the government responsible for how this subsidy is used?
And what constitutional constraints ought to be applied to these choices?
These are the issues pending in state and federal courts at this moment, where two of Arizona's most compassionate and innovative school choice laws are being challenged on various state and federal constitutional grounds.
And these cases will go a long way in terms defining the boundaries of the separation of church and state in Arizona for many years to come.
Sadly, these necessarily political decisions will also determine the educational opportunities of many of our state's most vulnerable and neglected children. Let's hope the courts make the right decision.
Two laws, the Displaced Pupils Choice Grant Program and the Scholarships for Peoples with Disabilities Program, are being challenged on the grounds that they violate the Blaine amendment in the Arizona state constitution, which forbids the use of public money for private or religious education.
Notwithstanding the bigoted, anti-Catholic nature of the Blaine amendment movement, the amendments themselves are not bad public policy. A strong separation between church and state is desirable, and the Blaine amendment to the Arizona constitution goes a long way in ensuring that public funds are not used for religious purposes, like the funding of religious schools.
However, in the 1999 decision Kotterman vs. Killian, the Arizona Supreme Court ruled that state money that goes to voucher programs and other type of scholarship funds available to parents does not violate the Blaine amendment.
The programs, the Court reasoned, do not discriminate between religious and non-religious options for parents. And because it is the parents who ultimately decide where these vouchers or scholarships are used, these programs do not constitute a state endorsement or funding of religious education.
Likewise, a current case before the Ninth Circuit of Appeals in San Francisco challenges the constitutionality of an Arizona tax credit law. This law allows individuals to receive tax credits for certain types of donations to educational institutions.
The American Civil Liberties Union, which typically does good work on some issues, has filed suit against this law, claiming that it is an endorsement of religion and that it violates the Establish Clause in the First Amendment of the U.S. Constitution.
Yet this claim clearly runs against legal precedent. The Supreme Court, in 2002's Zelman vs. Simons-Harris, upheld Cleveland's school voucher program, saying that parents' using publicly funded vouchers for private, religious schools is not in violation of the First Amendment.
Based upon this logical reasoning, Arizona's tax credit laws aren't likely to be overturned.
Winning on both of these issues will be a few major steps forward for low-income students in Arizona. It will be good for the rest of us, too.
When legislators get the go ahead from both the state and federal courts regarding these types of innovative education reforms, they will likely continue down the road of competition, choice and accountability in our system of education.
Arizona's school choice legislation is constitutional and it is necessary. Let's stop throwing needless roadblocks in the way of progress.
Reach the reporter at: macy.hanson@asuchoice.com.
