Cain v. Horne

Litigation: Litigation: Challenging the “Arizona Scholarships for Pupils with Disabilities Program” and “Displaced Pupils Choice Grant Program,” both voucher programs enacted in 2006. Opposed to educational choice program: Arizona Center for Law in the Public Interest, Arizona Association of School Business Officials, Arizona Education Association, Arizona Federation of Teacher Unions, Arizona Parent Teacher Association, Arizona Rural Schools Association, Arizona School Administrators, Inc., Arizona School Boards Association, American Civil Liberties Union of Arizona, and People for the American Way. In support: Arizona Attorney General and Superintendent of Public Instruction, Institute for Justice, Pacific Legal Foundation, Arizona Autism Coalition, Arizona Center for Disability Law, Chrysalis Academy Parents Association, Center for Arizona Policy, Alliance for School Choice, American Legislative Exchange Council, Black Alliance for Educational Options, Friedman Foundation for Educational Choice, and The Hispanic Council for Reform and Educational Options, Americans United for Separation of Church and State, Alliance Defense Fund Law Center, Father’s Heart Christian School, The Becket Fund for Religious Liberty

Outcomes: On March 25, 2009, the Arizona Supreme Court ruled that the state’s voucher programs – the Arizona Scholarships for Pupils with Disabilities Program and the Arizona Displaced Pupils Choice Grant Program – were unconstitutional.

Why it Matters: This court distinguished earlier decisions in Kotterman v. Killian (AZ) and Zelman v. Simmons-Harris (OH). The Court agreed that tax credits are not appropriations but found that voucher scholarships are direct appropriations from the state treasury. Furthermore, payment of voucher funds from the state directly to private schools, regardless of whether secular or sectarian, was found to be unconstitutional. Thus, the court rejected the Zelman holding that students, not schools, are the true beneficiaries. Arizona’s constitutional prohibition against state aid to any private entity, regardless of whether secular or sectarian, compelled a broader interpretation than the religion clauses of the federal constitution. It was important to the court that parents could only use vouchers at a private school and for no other purpose.

Effects: Cain gave rise to education savings accounts. After the Arizona Supreme Court ruled vouchers unconstitutional, work began almost immediately to craft a new educational choice policy in Arizona. Parents and advocates believed that the court may view funding to parents for educational services, rather than funding to parents exclusively for use at a private entity, as a funding plan that could pass constitutional muster.

Amicus Brief