Arizona Courts disregard the Constitution, authorize the privatization of public education

To paraphrase The Bard in Hamlet, “Something is rotten in the state of Denmark Arizona.”

DeathStarThe “Kochtopus” Death Star, the Goldwater Institute, has now achieved something it never could hope to achieve by taking a ballot measure to the people of Arizona to repeal two provisions of the Arizona Constitution prohibiting aid to private and parochial schools, and to approve a school voucher plan. In every state  in which a school voucher plan has appeared on the ballot and was put to a vote, the voters rejected it.

No, the evil bastards at the Goldwater Institute instead decided to bypass the voters and opted for a plan to convince just a majority of a panel of judges to accept their legal legerdemain (slight of hand) that by giving state money to taxpayers who then give the money to private and parochial schools, it’s not really giving state aid to private and parochial schools. (Wink, wink.)

Because this sophisticated scheme to fleece Arizona taxpayers is set up for individuals to access an account — a “pass-through” to the private education corporations that financially benefit — the Arizona Court of Appeals accepted the Goldwater Institute’s legal legerdemain that this somehow is not really a direct taxpayer subsidy, in Niehaus v. Huppenthal, No. 12-042 (Ariz. App. Ct., Div. One Oct. 1, 2013) (.pdf).

The appellate court distinguished Cain v. Horne (Cain II), 220 Ariz. 77,  202 P.3d 1178  (2009), in which Arizona’s Supreme Court struck down the legislature’s previous attempt at a voucher program.  Under that law, state funds were issued by check to a parent who had selected a private school, and the parent was required to restrictively endorse the check to the private school.  Interpreting Cain II, the Neihaus appellate court said the voucher program was struck down “because, essentially, the voucher programs transferred state funds directly from the state treasury to private schools…. In the programs disapproved in Cain II, the state was paying money directly to the institutions; although the payment first went to parents, they then went ineluctably to private schools.”  The appellate court found that the holding in Cain II did not render the ESA program unconstitutional because “unlike in Cain II, in which every dollar of the voucher program was earmarked for private schools, none of the ESA funds are preordained for a particular destination.”

See discussion at Arizona Court of Appeals upholds private school scholarship.

Taking advantage of a Friday news dump, the Arizona Supreme Court yesterday declined to review the Court of Appeals decision. The Arizona Supreme Court has effectively endorsed the Goldwater Institute’s legal legerdemain to effectively render two constitutional provisions null and void Sub Silentio.

The Arizona Supreme Court has made a momentous decision to judicially amend the Arizona Constitution to authorize the privatization of public education — the power to amend the Constitution is a power reserved exclusively to the voters — removing this decision from a vote of the people, and without any opinion explaining or justifying its momentous decision. This is a major scandal.

The Arizona Court of Appeals and the Arizona Supreme Court have effectively rendered two provisions of the Arizona Constitution mere artifacts and Dead Letter Law:

Article 2, Section 12: “No public money or property shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.”

Article 11, Section 7: “No sectarian instruction shall be imparted in any school or state educational institution that may be established under this Constitution, and no religious or political test or qualification shall ever be required as a condition of admission into any public educational institution of the state, as teacher, student, or pupil;”

We have a serious scandal here, folks. For those of you who ignore the “judicial retention” portion of your ballot, it is time for you to start paying attention. It is time to send a message to the Court of Appeals Division 1 (Phoenix), and the Arizona Supreme Court that they will not be retained because of their disregard of the Arizona Constitution and their overreaching judicial activism.

10 thoughts on “Arizona Courts disregard the Constitution, authorize the privatization of public education”

  1. Thucydides us right, sort of, in that when the public schools were first established they were largely Protestant, and often promoted specific sectarian dogma, which is why Catholics created a separate educational system. In recent decades, however, the public schools have almost entirely removed this tendency, so the AZ Court did not have to “remedy” anything by allowing the transfer of millions of tax dollars to private (mostly Protestant) schools.

    Also, most of the conservative groups that support this unconstitutional money transfer have been constantly working to push official prayer and other forms of Protestant evangelism back into our public schools, in effect trying to reverse all the progress we have made in the past 70 years.

    Fact is, tax money should not be used to promote any religious agenda.

  2. The Supreme court is violating the law. They are…according to the Modern Penal Code not supposed to be making new law which is precisely what they are doing !!!!!!! Outrageou !!!!!

  3. City of Phoenix council just voted unanimously (Nowakowski was absent) to dole out $10,000,000 oops…..sorry…..$ 13,000,000 in sweetheart tax/interest deals to corporate charter schools !!!!!! In Surprise area … They just gave a big finger to the people whose children and parents support PUBLIC SCHOOLS !!!!!!!

    This vote took place last Wednesday and they’re using a sneaky back door method with a little known organization called the Phoenix Industrial Development Authority.
    Leonard Clark

  4. What I don’t understand is this from the Appeals Court decision:

    “The parents of a qualified student under the ESA must provide an education in reading, grammar, mathematics, social studies, and science. Whether that is done at a private secular or sectarian school is a matter of parental choice. The ESA students are pursuing a basic secondary education consistent with state standards; they are not pursuing a course of religious study.”

    Have Catholic schools taken religion out of their textbooks and curricula? How can the court believe that parochial schools teach straight social studies and science. I’m pretty sure God is in their science book.

    The lack of accountability is stunning, considering how scarce money is for public education and how public school educators are held accountable for everything, including where they stand to give instruction.

    Can this move on to a federal court?

  5. I guess judicial activism in the defense of private school subsidies is no vice. Where is the right wing outcry about judicial activism now?

  6. Your column ignores the intense religious bigotry associated with the creation of the district education system and the roots of why some children get a taxpayer funded education at a district school and others do not get a tax payer funded education at the school they attend.

    Diane Ravitch does an excellent job of laying this out but does not seem to have read the book she wrote.

    Our supreme court has now remedied 200 years of hate.

    • I have posted about the Blaine Amendment origins in the past. It was not relevant to the Appellate Court’s decision. The Arizona Supreme Court upheld the Arizona Constitutional provisions previously, and has not overruled those constitutional provisions here, as you suggest.

      What the Court has done is far worse — it has judicially rendered those provisions null and void and a constitutional artifact by allowing the legal fiction that by giving state money to taxpayers who then give the money to private and parochial schools, it’s not really giving state aid to private and parochial schools. Only the people possess the power to amend the AZ Constitution. This is an abuse of power and a violation of the separation of powers.

      The Court has done this previously with the “Huppenthal Rule,” essentially negating the voter enacted citizens initiative requiring resign-to-run. By allowing the legal fiction that an “exploratory committee” can collect money and signatures to run for another office before the final year of a term, but the law is not triggered until the candidate actually files, has rendered the resign-to-run law a constitutional artifact and dead letter law. But then you would know all about that, wouldn’t you John?

  7. ….”(slight of hand) that by giving state money to taxpayers who then give the money to private and parochial schools, it’s not really giving state aid to private and parochial schools. (Wink, wink.)”

    That is like saying the public monies given to planned parenthood do not fund abortion in violation of The Hyde Amendment.”(wink, wink)”

    • Well Troll, Planned Parenthood maintains strict financial accounting records for its separate women’s health services and its abortion services because it expects and anticipates harassing and vexatious review of their records by the state of Arizona. The private corporate schools have little to no oversight or accountability for how they spend taxpayer money. And the Empowerment Scholarship Accounts bill from Debbie Lesko would actually allow parents to pocket up to $2,000 year of taxpayer money for a college fund. This is taxpayer funded corporate welfare, pure and simple.

  8. Thy hate public education with the heat of a thousand deeply ignorant suns, and would much rather children be religiously indoctrinated in Acceptable Conservative Thought. They make good little proles that way.

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