Oral Arguments: School Vouchers

Dec. 10, 2008

Transcript:

Ted Simons:
Tonight on "Horizon" we will take you to the Arizona Supreme Court where families rallied in support of school choice and justices heard arguments about the legality of Arizona school voucher programs. Plus a School Redistricting Commission meets for the last time. Hear what the chairman has to say about efforts to unify school districts in Arizona. That's next on "Horizon."

Announcer:
Horizon is made possible by contributions from the "Friends of Eight," members of your Arizona PBS station. Thank you.

Ted Simons:
Welcome to "Horizon." I'm Ted Simons. It's the biggest economic forecast event of the year in Arizona, local and national economists gave their predictions for 2009 at the 45th Annual J.P. Morgan and Arizona State University W.P. Carey School of Business Economic Forecast luncheon. One of the featured economists was Joel Naroff who has been honored as one of the best economic forecasters in the country. Naroff talked, among other things, about the psychological side of a recession and when a recovery might occur.

Joel Naroff:
The most important point I'm going to make is that a large part of what we're going through is psychological. We see confidence measures of households and businesses that are at all-time lows. And that's been going on for a while, even when unemployment rates were relatively low and growth was not that bad. We seem to have moved from a period of irrational exuberance to irrational despondence and I wouldn't be surprised if a year from now we would be looking at a rebound that's surprisingly strong given what we have right now. And that's where I'm kind of out on a limb is that I expect it to take, that the strong growth may reoccur by the end of next year, while I think most people are looking into the spring or summer of 2010 at this point.

Ted Simons:
Yesterday the Arizona Supreme Court heard oral arguments in a case challenging the constitutionality of voucher programs for special needs and foster kids. Parents of children who qualify get a check from the state that can only be cashed by a private school as full or partial payment for tuition. Now, in May the state Court of Appeals say the programs violate Arizona constitution, specifically the aid clause which prohibits the state from appropriating public money in aid of any church, private or sectarian school or public service corporation. Lawyers for families with children who benefit from the voucher programs appealed to the state's high court. They argued that vouchers aid children and families, not the schools they attend. David Majure introduces us to one of those families and takes us into the courtroom where lawyers argued both sides of the issue.

Voucher Program Supporters:
Support school choice! Support school choice! Support school choice!

David Majure:
They gathered outside the Arizona Supreme Courthouse, a show of support for state-funded voucher programs that help foster kids and kids with special needs attend private schools.

Tim Keller:
For two years, the state's largest teachers union, the ACLU, and the people for the American way have been trying to halt these scholarship programs that are providing an excellent education for hundreds of Arizona school children.

Teacher:
Nice job Lexie. High five!

David Majure:
Children like Lexie Weck, diagnosed with autism, she wasn't progressing in public school so her mom Andrea applied for a state voucher to send Lexie to the private Chrysalis Academy in Tempe.

Andrea Weck:
Once we started here, her world started opening up.

David Majure:
On May 15 the Arizona Court of Appeals said the state's school voucher programs violate the Arizona constitution, specifically Article 9, Section 10, the Aid Clause, that says there shall be no appropriation of public money in aid of any private or sectarian school.

Andrea Weck:
I thought, "Oh, my gosh, what can I do to get that overturned" or "I need to get another scholarship." Like, "I don't know what I am going to do. I am going to cry first."

Andrea Weck:
Every child deserves a quality education and every parent deserves to choose that for their child.

David Majure:
Andrea Weck and dozens of others held a rally outside the Supreme Court moments before justices were scheduled to hear oral arguments in an appeal of the lower court's decision.

Tim Keller:
This case will answer the question of whether the state can provide meaningful help to Lexie Weck and others like her.

David Majure:
First up was Tim Keller, an attorney representing the Wecks and other families. Part of his argument was based on the fact that public schools routinely and legally contract with private schools to provide educational services for special needs kids.

Michael Ryan:
Could the legislature simply appropriate to private schools the same amount of the ADM that they give to public schools?

Tim Keller:
They could not do it directly to private schools, no. That form of direct aid is precisely what I believe the founders were trying to prohibit with Article 9, Section 10.

Michael Ryan:
Aren't you doing indirectly what the constitution prohibits directly?

Tim Keller:
No. Because what is going on here is allowing parents to purchase educational services for their children in the same manner that public school districts are permitted to do every day for children with disabilities. And there's a concession --

Andrew Hurwitz:
But your argument, to be fair, extends beyond children with disabilities. Your argument would be applicable to every child in the state.

Tim Keller:
It would.

Andrew Hurwitz:
So we can stipulate at the beginning that these are worthy applicants for whom the legislature really wanted to help. You are making an argument that would extend to every school child --

Tim Keller:
Absolutely, your honor. That argument is that allowing parents to purchase services from private schools is not aid to the institution. It's an aid to the individual.

Andrew Hurwitz:
What concerns me in this case is, in effect, we have a state check that's called a voucher but it's a warrant drawn on the state of Arizona, that is only issued once somebody identifies a recipient which is, who is one of the forbidden aid recipients in the --

Tim Keller:
No, your honor.

Andrew Hurwitz:
I understand it may be possible that there's a public school that this would be issued to but at least at the time it is issued, as I understand it, the parent comes back and says, I have now got an arrangement, give me the check, I will take it over to the Phoenix Country Day School, and I will endorse it to them and the state says fine. Why isn't that direct aid? It's not the parents' money. They don't own it. They get to direct it but they don't own it. Shouldn't we at least require that they own it?

Tim Keller:
It is -- it is direct aid to the individual.

Andrew Hurwitz:
But they can't cash that check. They can't -- they can only give to it somebody else who can cash it to put it into their treasury. Isn't that --

Tim Keller:
It is provided by the state for a specific purpose, a public purpose which is education.

Michael Ryan:
But the statute requires that a school must qualify in the child has to be accepted at that school before the state will cut the check. Correct?

Tim Keller:
That's correct, your honor.

Michael Ryan:
So isn't that direct aid to that school?

Tim Keller:
No, it's not.

Michael Ryan:
Well, they have to appropriate money from the treasury.

Tim Keller:
The constitution provides great latitude to the legislature to appropriate money for educational purposes.

Michael Ryan:
Where do you see that in the language of Article 9, Section 10?

Tim Keller:
Article 9, section 10 prohibits the legislature from appropriating money in aid of churches, private or religious schools, or public service corporations. But here, what the legislature has done is they have passed remedial programs in aid of families with children with disabilities. And we know it's remedial because, for example, under the Disability Program they require the students to attend a public school for a full year before they are ever eligible.

Andrew Hurwitz:
But again, it doesn't matter. It doesn't matter for your argument that it's remedial, I take it. It doesn't matter that the worthy recipients of this program are parents of children with special needs.

Tim Keller:
It certainly goes to the legislature's intent, was their intent to pass the program in aid of private schools or was it a program passed in aid of families?

Andrew Hurwitz:
Let's go back to the example I asked you about before. Let's assume that the legislature's purpose is to aid children and it says if we gave $1 million to the Phoenix Country Day School, it would aid children in Arizona.

Tim Keller:
They couldn't do that.

Andrew Hurwitz:
So it's not just their purpose. It's whether or not, in the end, there's some sort of direct aid.

Tim Keller:
The question is, who have they given the aid to and for what purpose?

Don Peters:
Another we think is to insure the citizens are not taxed to support the propagation of religious views they don't agree with.

David Majure:
Attorney Don Peters represented the plaintiffs in the case who argued the state school voucher program violates the Arizona constitution.

Don Peters:
If you read the entire Arizona constitution, there's a great deal about education. There has to be a public school system. There are many provisions about things that system must do and a number of provisions about things it must not do. And I think the drafters were wise enough to realize that none of that would mean much if the legislature was free to create, in effect, a shadow system of publicly funded private schools that could ignore all of those requirements. And I think at least part of what you see in the aid provision is that door being closed. And the legislature being told it must be faithful to the system of public schools.

Andrew Hurwitz:
Can we focus on the aid provision for a second? Because that's what the Court of Appeals decided the case on.

Don Peters:
Right.

Andrew Hurwitz:
Do you agree that the state could pick this population of worthy parents and say to them, "Here's a grant, each of you of $2,500 to be used in pursuance of your children's education?" Spend it as you wish?

Don Peters:
Yes.

Andrew Hurwitz:
And if they spend it on a private or parochial school or on a public school but transferring districts that would be ok?

Don Peters:
Yes. I think the dividing line has to do with how much the state constrains the choice.

Andrew Hurwitz:
What if the legislature said, "This is not -- we are leaving the ADM money for each of these children in the school in which they started but here's an additional $5,000 and exactly the same program." Would it then violate the aid clause in your view?

Don Peters:
We are talking purely to private schools?

Andrew Hurwitz:
Well, aid clause. We are only talking about the aid clause for a second. We are not talking about the religion clause. So, the ability to go to private schools to make the example easier. The legislature says, when the student in the public schools parents come in and says he wants to go some place else, you can do that, public school still gets the $5,000 for that student, we have an additional $5,000 that you can use for exactly the purposes of this program.

Don Peters:
My analysis would be, yes, that would still violate the clause, because --

Andrew Hurwitz:
So it can have to do with diverting assets from the public schools then?

Don Peters
Except, you are assuming as long as they maintain current funding for public schools, if they then pay additional money to private schools it's not a diversion of assets and I really would quarrel with that. Under the Arizona constitution the legislature is charged with both maintaining and improving the public school system and I think the intent of the whole document is this is your vehicle for publicly funded education. And thou shalt have no other masters, this is what you will serve. So if it has money available for education that it's routing to a public school I would argue that is inconsistent with the intent of the constitution. Clearly people are being taxed to pay for religious education under these provisions. And in a significant, not a diminimus way. Clearly significant public resourcers are being diverted from the public schools toward private and religious schools. You can have issues as to whether the state giving a flag or a copy of the constitution to a private school would constitute aid. When they're writing checks for five to $20,000, I don't think the issue is close. That's why I would say this one is clear and the close questions are best addressed when they are presented.

Ted Simons:
Joining me to discuss this case is Capitol Media Services reporter Howie Fischer. Thanks for being here Howie. This idea of the money is going to parents as opposed to institutions, how's that playing there at the Supreme Court?

Howard Fischer
I think the Supreme Court is having a real problem with the idea. The argument to a certain extent of Tim Keller and the parents boils down to, we are not aiding the school, we are aiding the parents. The beneficiaries are the children. But the problem that the court is having is that the parent is given a voucher, this check that Justice Hurwitz was talking about, which is payable only to that private or parochial school. So it's not in the case that we were talking to Don Peters where they're saying, you are giving them a check to use however they want and some of it may wind up in a private or parochial school. The court is having a real problem about that. They are saying, look, you are aiding a private or parochial school. One of the issues that they kind of got into is, how much constitutes aid. There are other states that have the same sort of aid clause. It's called a Blaine Amendment. Some of the courts in those states have said if you limit it to something specifically that benefits the students, in other words, if you gave the parents a check for textbooks, for academic subjects, maybe you could say you are not aiding the school. This is a check that goes for everything: tuition, fees, religious training, prayer. I mean, you get into a whole bunch of areas there where you have actually said that you could let these schools that are getting these public checks force children to attend religious instruction.

Ted Simons:
It seems as though the questioning keeps going back to that specific purpose of the money.

Howard Fischer:
Exactly. The question becomes, what's the purpose? The tricky part is, we know that Catholic schools, private schools, do get state money now indirectly. What happens is, let's say this is a child in the Tempe Union High School district that has a specific problem. Tempe is allowed to contract with, let's say, Xavier to provide certain services for that student. The difference is that Tempe, the child, A, is still a public school student which means, B, Tempe has a responsibility to live up to all the laws governing that, and, C, the contract is still maintained between the district and there. Now, obviously, what Tim Keller would have you believe, well, this is another form of contract. But there isn't the same sort of arm distance relationship. Essentially the parent is paying money to the school that the state is paying money back to the parent that, for what could be religious or private education.

Ted Simons:
Indeed the idea that, and again, this is for those supporting this program, the idea being that if the government, if school districts, if schools can send kids to these places, why can't parents? That becomes into play because the kids are still superseded by the school, they are still part of a school district as opposed to getting money directly and sending it off to the school.

Howard Fischer:
It is a very tight situation. And I think that's part of what the justices are struggling with. If there had been no public money ever going to private and parochial schools through the contracts, I think this would be a slam dunk to say this is illegal what you are trying to do with the parents. I think the justices are trying to figure out, well where is the line between a legitimate contract where the money remains state money for contracting for services, and then becomes private money.

Ted Simons:
Are we likely to see a ballot initiative from whichever side loses this is case?

Howard Fischer:
Oh, I think that's very clear because you have the two issues. The -- this aid clause that we put up on the screen earlier and then there's a separate issue which prohibits the use of state funds for religious instruction or worship. And if, in fact, you have parochial schools involved here that are telling the kids who can, A, discriminate on what they accept and, B, can tell the kids you will go to catechism, now you were implicating that. If the courts decide the vouchers are illegal under one or both, we know that Tim Keller has said we will try to re-craft those constitutional amendments to say this kind of aid is permissible. We also know that if the Arizona education loses, if the court determines these vouchers are legal, they will come back and try to tighten up the language to say, "No, no public money can ever go to these schools."

Ted Simons:
What about action in the legislature? Again, regardless of who wins and loses here, the legislature likely to do anything or just kind of wait and see what happens in 2010?

Howard Fischer:
I think they need to wait until the constitution is amended. Because if, in fact, even if the vouchers are upheld, they might try to go ahead and open the door to other vouchers. As Andy Hurwitz pointed out, this is a test case. Maybe it involves 500 kids but we know this is really the test case for vouchers statewide. But I think they are likely to wait to see what the final word is on how the ballot looks.

Ted Simons:
Real quickly the justices did not seem all that interested or impressed by the fact that these were special needs children, and foster kids. They kind got past that pretty quickly.

Howard Fischer:
They got past that pretty quickly. As you heard Justice Hurwitz say, while Tim Keller said these are kids who are foster care, they have special needs, the child who was featured here, this isn't what it's about because if they open the door for these children, you have opened the door for a million children in the state to get vouchers.

Ted Simons:
All right. Very good, Howie thanks for joining us. We appreciate it.

Ted Simons:
In November, some Arizona voters were asked if they wanted to merge their school districts with one or more others. It was a process authorized by the state legislature and implemented by the School redistricting commission. The commission asked voters to consider consolidating 76 school districts into just 27. Of the 27 unification plans that went to the voters, 18 failed. Three were approved without question, and another six may be approved depending on the outcome of some lingering legal questions. I'll talk with the Chairman of the Redistricting Commission in a moment, but first here's what some commission members had to say about their work at the final commission meeting.

Thomas Schoaf:
Throughout our districts and throughout our state that our voters have spoken and they have for the most part decided that unification of their districts did not work for them. And so I would urge the commission to accept that and extend the situation back to the legislature. If the people's elected representatives in the legislature want to do something further with this, then I think that's the appropriate place to take this up.

Vicki Anderson:
But I would really like to see this commission continue. I think that unification is the future. Lots of big cities throughout the country are unified and it's working well. I don't think we were as efficient in getting the word out to the general public what it was all about.

Joseph Thomas:
We only have 48 states that spend more money than we do on our kids. [Laughter] And to try and look for efficiencies in the system that is that far at the bottom was a valiant pursuit by everybody in the room. I don't know if unification is always the best plan, but it is one that can come back up every year with new legislation and new studies. We certainly can look at it again. Other people hopefully will look at it again.

Ted Simons:
Joining me is Marty Shultz, Chairman of the School Redistricting Commission and recently named Man of the Year by Valley Leadership. Congratulations on that.

Martin Shultz:
Thank you.

Ted Simons:
Let's talk about the commission -- let's talk about the vote first. Why do you think so few voted for unification?

Martin Shultz:
Well, actually, a third of our proposals actually passed. And as you suggested, some are in litigation. There was strong opposition as we expected from a number of school districts. The school district boards, the school district personnel, the administrators specifically have demonstrated resistance throughout this process. They really want to keep their school districts as is.

Ted Simons:
With that in mind, why did not the commission go ahead and try to get another vote? Why did the commission decide this was it, that's the ballgame?

Martin Shultz:
Well, I think that this is a long process. For the last 20 years there's been incentives for school districts to unify in Arizona, and except for Kingman, nobody took advantage. This is the second set of decades, if you will, and this was an opportunity for the voters in these unified -- in these districts to make a decision and as I said, a third of the unifications passed. There will be continued efforts as I understand it. There's going to be an effort to continue the school district redistricting commission. Efforts at the legislature to pass laws to put more money in the classroom, which is fundamental to this effort. In other words, we are really talking about the efficient use of the tax dollar for education.

Ted Simons:
Talk about the legislative effort as far as unification is concerned. Will that be stepped up, do you think?

Martin Shultz:
I hear from various legislatures that they think we have made progress. This is not something, you don't change 100 years of history in a year. And in one vote. So it's a situation where we know that we need to improve the way we invest money in education. It really is really a fundamental to education in Arizona, that is changing the way we invest the money because right now, as the governor, that's governor Napolitano said recently to 130 school districts, you are not investing enough money into the classroom. And I would like you to invest more. She sent a letter to all these school districts. I trust that the governor in waiting, Jan Brewer, will also feel the same way, that there's more money that needs to be invested in the classroom for teacher salaries, for lower class size, for all those things that actually make a difference in the lives of kids.

Ted Simons:
As far as the election results, why are we not clear even now who won and who lost in some of these cases? We got six out there still trying to figure those out.

Martin Shultz:
We are not trying to figure anything out. This is about resistance. Lawsuits have been filed by school districts. The school boards specifically who are saying, "No, the electors did not make a decision to vote in favor of unification." Their argument is that instead of the voters who came out and the majority of those voters making a decision, they're saying we should have done a Proposition 105 type thing and the courts should look at this law as requiring a majority of all the registered voters including those who are not on the rolls or who are dead, if you will, but just somehow are still on the vote rolls, which I believe is an attempt to thwart the will of the people in those districts and a waste of the taxpayers' money. But it'll be up to the courts to make these decisions.

Ted Simons:
There's also a question that if one district is impacted and goes ahead and votes no, one element of the district, than that should be veto for the entire plan. I know there's some thought, some disagreement there as well. Correct?

Martin Shultz:
There's disagreement because when you are trying to divide school districts into various parts, there are issues that have been brought up and can -- can be brought up and therefore the superintendent of public instruction has asked the attorney general some opinions in those areas in Pennell County specifically.

Ted Simons:
Is there any thought of a statewide vote as opposed to people that were just involved in their districts?

Martin Shultz:
That is interesting. Yesterday at our commission meeting Dr. Blanchard, he's a former senator, he is a professor of education, brought forward the main legislation, another approach to asking the question, "Should we unify our school districts for the purpose of investing more money into the classroom?" and that may be considered by the Arizona legislature.

Ted Simons:
Last question. Real quickly here, what did you learn from this process? What could be changed?

Martin Shultz:
Well, I actually think that we need to follow a process like this. What can be changed, I don't think that anything other than more time and more effort. I would appeal to the school districts and the school personnel to think not only about their school district but about a larger view because Arizona spends $9 billion in education and we believe more money should be spent in the classroom. So I learned a lot but we don't have enough time, I am sure, to delineate all those learnings.

Ted Simons:
All right Marty, thanks so much for joining us. We appreciate it.

Ted Simons:
Coming up on "Horizon," experts talk about educating Arizona. We will visit a nationally acclaimed charter school in Tucson and see what ASU is doing to test innovations in education. That's Thursday at 7:00 on a special edition of "Horizon." That is it for now. Thank you so much for joining us. I'm Ted Simons. You have a great evening.