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Arizona’s current education system is not making the grade, with more than 600 of our public schools declared failing under federal standards.  Despite the clear need for reform, the Arizona School Boards Association and the American Civil Liberties Union of Arizona just announced a lawsuit that could undermine a solution to save both the educational futures of our children and the public school system: expanded school choice.

This year, Arizona’s Legislature expanded the state’s successful scholarship tax credit program so that corporations can donate money to provide scholarships for low-income families.  More than 21,000 Arizona children already benefit from educational scholarships thanks to the existing individual tax credit program.

School choice is the only education reform proven to result in immediate improvement of all our children’s learning environments – both for students who choose to attend private schools and for students who remain in public schools.  But choice opponents are afraid of true education reform.  They want to maintain the status quo by pumping more money into a system that has already proven itself unable to educate our kids.

Faced with mountains of solid data demonstrating the benefits of school choice programs across the country, choice opponents in Arizona turned to their last refuge – legal action against a policy they dislike.  This is the third such lawsuit against scholarship tax credits in Arizona, and like the previous two, this one is doomed to fail.

First, the decision of school choice opponents to invoke a provision of the Arizona Constitution known as a Blaine Amendment is both pointless and disgraceful.  In 1999, the Arizona Supreme Court flatly rejected this argument against scholarship tax credits, recognizing that the Blaine Amendment is nothing more than a remnant of 19th-century religious bigotry. 

Blaine Amendments were the brainchild of James Blaine, a post-Civil War U.S. Senator who hoped to ride an unfortunate wave of anti-immigrant and anti-Catholic sentiment to the Presidency.  He failed, but his discriminatory proposal lived on as Congress forced states like Arizona to include Blaine Amendments in their state constitutions as a condition of admittance to the union.

In upholding tax credits the first time, the Arizona Supreme Court wrote that it would “be hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it.”  That opponents of school choice are relying on such language—again—in an attempt to derail education reform is truly shameful.

Second, the Blaine Amendment is simply irrelevant to the constitutionality of school choice.  The plain language of the Blaine Amendment prohibits public funds supporting private or “sectarian” schools, and such provisions were intended to deny direct funding for “sectarian” (code for “Catholic”) schools.  But school choice programs benefit children, not any particular school.  Not one scholarship dollar reaches any school unless a parent chooses to spend it there. 

Moreover, the First Amendment to the U.S. Constitution—including the Free Exercise Clause, the Establishment Clause and the Free Speech Clause—protects the rights of parents to choose among a wide array of educational options, including religious schools.  Because Blaine Amendments discriminate against these rights, such amendments would violate the U.S. Constitution if used to block school choice.

Finally, the ASBA and ACLU claim that the program violates a separate provision of the state Constitution providing for the maintenance of public schools.  But that provision says nothing about prohibiting additional educational programs that help parents who choose private schools.  In fact, the Arizona Supreme Court noted that school choice programs “further the objective of making quality education available to all children within a state.”

This new lawsuit is nothing more than a frivolous attack using recycled and rejected arguments.  It is not surprising that groups dedicated to protecting the education monopoly seek every avenue of frivolous challenges to the Legislature’s decision to empower parents to direct their children’s education.  That is why the Institute for Justice will move immediately to intervene in the lawsuit to defend the rights of parents and children.

It is time to reject the one-size-fits-all approach to education that has so miserably failed our children.  Experience has proven that the resulting competition of school choice improves public education.  So let us be about the business of true education reform.  Our children deserve nothing less.

Tim Keller is the Executive Director of the Institute for Justice’s Arizona Chapter, which successfully defended the Arizona Scholarship Tuition Tax Credit from a legal challenge in the Arizona Supreme Court and secured a ruling upholding the program in federal District Court.