The Court of Appeals won't stop the state from continuing to fund a controversial voucher program, at least not now.
In a brief order Tuesday, the judges rejected a request by foes of what are called "empowerment scholarship accounts'' to block continued payments while the legality of the program is litigated.
The judges gave no reason for their ruling. But they said it does not necessarily presage that they will conclude that the vouchers are constitutional.
Tuesday's order came the same day the state House voted to further expand eligibility for the program to those enrolling in kindergarten. Currently a student is eligible only if he or she had previously attended a public school.
It also expands aid for students who previously attended charter schools.
The lawmakers' proposed changes follows implementation last month of a preveiously approved expansion that potentially opens the program to tens of thousands more students. Currently, there are just 302 Arizona students in the program.
Attorney Donald Peters, who is representing the Arizona Education Association and others who sued, said he sought the funding delay on behalf of those students who might find themselves out of luck in the middle of the school year if the appellate court decides the funding plan is illegal.
The 2011 law requires the state treasurer to set up a special account that parents of students with special needs could tap to pay tuition and fees for their children at private or parochial schools. The aid is equal to 90 percent of what the state would otherwise pay in state aid to send that child to a public school.
That figure depends on everything from grade level to the child's needs. Legislative staffers put the scholarships at anywhere from $1,700 to as high as $26,000.
The AEA sued after the law passed, contending the plan violates a constitutional provision which specifically bars state aid to private and parochial schools. They also cited another constitutional section precluding the use of public money for religious worship, exercise or instruction.
When a trial judge rejected the challenge, foes sought relief at the Court of Appeals.
Last year, though, lawmakers voted to expand the program to make it available to any student in a school rated D or F by the state for academic achievement. State officials said there are about 90,000 youngsters in D-rated schools -- none has yet scored an F -- all of whom would be eligible.
The Department of Education says it is still counting, but knows of at least 1,200 applicants as of a month ago.
"They may have all these people starting to rely on these scholarships, only to find in the middle of the (school) year the court finds it's unconstitutional,'' Peters said.
"Then they've switched schools once and they're going to have to switch again if the funding for their new school is withdrawn,'' he explained. "Nobody, whatever their view of education, thinks that frequently changing schools is good for any kid.''
The appellate court gave no indication when it ultimately will rule on the legality the program. And whichever side loses is virtually certain to take the issue to the state Supreme Court.