A veteran lawmaker wants voters to carve an exception into the Arizona Constitution to allow state aid to private and parochial schools.
Rep. Jack Harper, R-Surprise, said he believes students who have been in foster care or are disabled should be able to attend schools that may suit their needs better than the regular state-funded system. Lawmakers have previously approved such vouchers but they were declared illegal.
But Harper's plan also would require the state to provide $5,500 vouchers to pay tuition at private or parochial schools to students in any school where class size exceeds 35.
He acknowledged that class size is determined, at least in part, by the amount of aid lawmakers approve for public schools. But Harper sidestepped questions of whether such a constitutional change would essentially provide an incentive for supporters of state funds for private schools, including him, to curtail state aid to open the gates to vouchers for everyone.
"All we're doing with this referral to the ballot is making future legislation (about vouchers) constitutional," he said. Harper said it sets no new policies on state aid.
"That's up to a future Legislature, elected by the people, and with input from the people," he said.
Harper conceded, though, he purposely crafted the measure in a way to make it more attractive, both to his legislative colleagues and, ultimately, to the voters who would have to approve the change: It would help former foster children and those with disabilities.
"And I attached one (provision) that is my goal that I hope to piggyback off of the others," Harper said.
Central to the fight are two constitutional provisions.
One bans the use of public money or property for religious worship, exercise or instruction. The other forbids public funds to be used to aid any church or any private or sectarian school.
Those amendments have stood in the way of lawmakers who have argued that parents should have the maximum possible choices of where to best educate their children.
While nothing now precludes parents from choosing a private or parochial education, they cannot rely on state help. Some legislators have argued that is not only unfair, as the parents are paying taxes that support public schools, but that vouchers can save money because they mean fewer children in public schools.
Harper said he sees other benefits.
"I believe it breaks down the barriers to competition," he said, putting private and parochial schools on an equal footing with public schools. Harper said it also "sharpens the focus of the public schools to want to do a good job for every child," knowing that parents could just as easily send their youngsters elsewhere - and the state aid, which is based on the number of students, would decline.
Various attempts to approve vouchers have been blocked by the court.
Most recently, the Arizona Supreme Court struck down a 2006 law which provided $2.5 million in vouchers to parents of former foster children to pay tuition and fees at private or parochial schools. An identical fund was set up for students with disabilities.
Tim Keller of the Institute for Justice argued there was no constitutional violation as the tax dollars were not going to "aid" the schools but the parents, calling any benefit to the schools "purely incidental." He also said courts have upheld the ability of governments to use tax dollars to get non-religious services, even from religious groups.
Those arguments did not fly.
The justices, in their 2009 unanimous opinion, called the programs "a well-intentioned effort" to assist students with special needs.
"But we are bound by our constitution," wrote Justice Michael Ryan. 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.
The court also rejected the arguments that the schools are simply being paid to educate children, saying the vouchers do not provide reimbursement for any specific contracted services.
"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."
The ruling was a major setback for voucher proponents who admitted at the time they created the small program to test the legal waters. They had hoped a ruling in their favor would pave the way for a full-blown voucher program, with every parent entitled to use state tax money to send children to any school they want.
Ryan, in his ruling, essentially provided the roadmap that Harper is following: He said the way to make vouchers legal is to persuade voters to amend the constitution to alter or repeal the ban.