Saying it's really a legal contract between the state and parents, Superintendent of Schools John Huppenthal is urging the Arizona Supreme Court to uphold the legality of what amounts to a voucher program for students.

In legal papers filed late Friday, Huppenthal acknowledged the law, first approved in 2011, does allow parents to use funds from the state to send their children to private and parochial schools. The aid equals 90 percent of what the state would otherwise pay in aid to send that child to a public school.

Huppenthal disputed the contention of the Arizona Education Association and others that the program runs afoul of a state constitutional provision which specifically bars aid to private or parochial schools. And he said the funds also do not violate a separate section of the constitution which forbids any public funds from being used for religious worship or instruction.

What the court rules will most immediately affect perhaps 100,000 youngsters who are eligible for what the Legislature has dubbed “Empowerment Scholarship Accounts.” These are available both to students with special needs but also any student in a school rated “D” or “F” by the state Board of Education.

But proponents of the plan have publicly acknowledged they want it expanded statewide. That could mean state funds for private or parochial education – or even home schooling – for the 1.1 million children now in public schools.

Prior efforts by lawmakers to provide such aid have been struck down as unconstitutional. The Arizona Supreme Court has said the state was effectively giving money to private and parochial schools, whether directly or through checks given to parents – checks that had to be signed over to one of those schools.

Don Peters, representing the AEA, the Arizona School Boards Association and others, contends this latest plan to give money to parents is just as illegal.

In his argument to the high court, Peters said all this new version does is simply shift the money around in a different way. The bottom line, he said, is that no matter how you look at it, public dollars wind up in the coffers of private and parochial schools.

But Huppenthal said foes of the scholarship program are looking at it all wrong.

“The ESA program neither makes appropriations to private schools nor requires parents to endorse all (or any) funds they receive to private schools,” he argued through his attorneys. Instead, Huppenthal said, the program “only indirectly benefits private schools.”

Huppenthal said the program sends money to the Department of Education. It is that agency which then contracts with parents of qualifying students. And the parents have to agree to provide an education for their children in reading, grammar, math, social studies and science.

Only then do the parents get the money.

More to the point, said Huppenthal, is that while the parents can spend the money at a private or parochial school, they do not have to spend the money there. There are other options including tutors and books and supplies for home schooling.

Similarly, Huppenthal said there are no funds being used for a religious education which would be constitutionally impermissible.

“These students are pursuing basic primary or secondary education, not a religious course of study,” he argued, saying the fact that some students may use the funds to pay tuition at religious schools is immaterial.

So far the courts have sided with Huppenthal and supporters of the program.

In a unanimous ruling earlier this year, the state Court of Appeals ruled that the fact it is the parents who get to decide where to spend the funds makes the program constitutional. Appellate Judge Jon Thompson, writing for the court, said that makes it irrelevant who ultimately gets the dollars.

And Thompson said the beneficiaries of these state dollars are the families and not the private or parochial schools.

The Supreme Court justices have yet to decide whether they will even review the appellate court ruling.

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