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People for the American Way and the American Civil Liberties Union (ACLU) recently filed a lawsuit challenging the constitutionality of two new school choice programs in Arizona. If they succeed, they’ll block an innovative plan to help some of the most at-risk children in society.

In July, Arizona Governor Janet Napolitano, a Democrat, signed into law two new school choice programs aimed at two groups of children that need better choices: students with disabilities and foster children. The foster children program would be the first in the nation.

The liberal groups now suing to derail these programs say that the new programs violate the state’s constitution because some students might choose to attend parochial schools – a charge they have levied against other school choice programs across the country.

But Tim Keller of the Institute for Justice, a public-interest law firm that defends school choice programs, explains that the programs don’t violate the state constitution. “The program is not created to benefit private or parochial schools,” he noted. “The program is designed to benefit children. And these children are in desperate need of aid.” Moreover, Arizona’s constitution has never been interpreted to forbid the state from improving educational options, such as by providing school choice.

How the Arizona Supreme Court will rule is uncertain. In 1999, the court upheld the state’s scholarship tax credit program in the face of a similar constitutional challenge. But this is the first time that it will consider the constitutionality of a school voucher program.

Two things are certain: The ruling will impact thousands of Arizona children and has the potential to affect many more across the nation. The challenges facing children with emotional, physical, or mental disabilities are well known. But foster children are too often overlooked. The new program was designed to address their unique needs.

By any measure, children in foster care are among the most at-risk in our society. Foster children are far more likely to become homeless, incarcerated, or dependent on state services than other children.

A prime reason for these poor outcomes is the challenge foster children face when they are pushed out of state care and into independence, often with little preparation and no support from family. This transition can occur as early as 18. Whether or not a former foster youth succeeds on his or her own depends in large part on success in school. Unfortunately, research suggests that many foster children do not receive a quality education.

To better understand the challenges facing foster children, the Maryland Public Policy Institute conducted focus groups with former foster children and foster parents. The findings of the focus groups are available in a new report released this week.

The report details how former foster children came from “horrendous situations” and spent many years living in the government system, where their lives were unstable. Several of the former foster children were “in a different living arrangement and school every year of their formative years.”

Both former foster children and foster parents agreed that foster children face many challenges in school, from the stigma of being a foster child to the lack of smooth transitions when switching schools. They agreed that foster children are at risk to “flounder once they are legal adults… They are not well-educated, and they often have not mastered basic life skills.”

Despite the odds, some foster children do succeed. Each of the former foster children interviewed in the focus group attained independence and is now making a positive contribution to society. But they recognized that many of their peers weren’t as fortunate. Both the former foster children and foster parents agreed that more should be done to give foster children better educational opportunities.

Both groups supported the idea of giving foster children scholarships. They also suggested that policymakers should structure scholarship programs to cover additional expenses associated with attending a school of choice, such as transportation. The focus group confirms that more needs to be done to help foster children succeed and that scholarships could be a big part of the solution.

Arizona lawmakers and Gov. Janet Napolitano have tried to do just that. The state’s new program, scheduled to begin in 2007, would provide tuition scholarships worth $5,000 apiece to as many as 500 foster children.

Beyond helping hundreds of at-risk children, Arizona’s program could be a promising model that state policymakers could use to help more of the 500,000 foster children in America. But we may never learn how scholarships could help at-risk foster children if the ACLU and the People for the American Way succeed in their efforts to block the program before it begins.

Dan Lips is an Education Analyst at the Heritage Foundation.  This article previously appeared in Heritage’s Education Notebook.