Cain v. Horne – 5/15/2008

May 28, 2008

Arizona Court of Appeal Division Two Holds That School Voucher Programs That Provide Aid to Private Schools Violate Aid Clause of the Arizona Constitution.

The Arizona Legislature enacted bills creating two school voucher programs, the Arizona Scholarships for Pupils with Disabilities Program (the “scholarship program”) and the Arizona Displaced Pupils Choice Grant Program (the “grant program”).  Under the school voucher programs, the state disburses funds to the parent or guardian, who “restrictively endorses” the payment to the school.  Parents or guardians select the schools their child will attend, and both sectarian and nonsectarian schools can participate.  Appellant filed suit arguing that the school voucher statutes violated the “Religion Clause” (Article II, Section 12) and the “Aid Clause” (Article IX, Section 10) of the Arizona.  Appellee moved for judgment on the pleadings.  The trial court granted Appellee’s motion, finding the programs did not violate either of these constitutional provisions and dismissed all claims with prejudice.  This appeal followed.

The Arizona Court of Appeals reversed and remanded with direction to enter judgment for Appellant, holding that the school voucher programs violated the Aid Clause, which prohibits any “appropriation of public money made in aid of… private or sectarian school[s].”  The Court declined to adopt a broad application of the “true beneficiary theory,” under which the children receiving the benefit of the vouchers would be characterized as the “true beneficiaries” of the school voucher programs rather than the institutions receiving the funds, finding that this would improperly nullify the Aid Clause.  The Court further found that applying the “true beneficiary theory” would effectively make the Aid Clause redundant since “practically every proper expenditure for school purposes aids the child.”  The Court concurred with the trial court’s finding on the Religion Clause, noting that “[a]s enacted, the State’s school voucher programs do not result in an appropriation of public money for, or an application of public money to, any religious worship, exercise, or instruction or to the support of any religious establishment.”  The Court declined to address Appellant’s argument that the voucher programs violated Article XI, Section 1 of the Arizona Constitution. 

Judge Vásquez authored the opinion; Judges Eckerstrom and Espinosa concurred.