Arizona Court of Appeals Division One Holds that the Arizona Empowerment Scholarship Accounts Program Does Not Violate the Religion or Aid Clause of the Arizona Constitution.

In 2011, the Arizona Legislature passed Senate Bill 1553, establishing the Arizona Empowerment Scholarship Accounts program (“ESA”) to provide education scholarships to students with disabilities.  To qualify, a student must have a recognized disability and have either attended a public school in the previous year or been the recipient of a scholarship from either a school tuition organization or the ESA.  The parent of a scholarship student must agree to provide an education for the student in at least “reading, grammar, mathematics, social studies and science,” and agree to “[n]ot enroll the qualified student in a school district or charter school and release the school district from all obligations to educate the qualified student.”  A.R.S. 15-2402(1), (2).

Niehaus filed a complaint in Maricopa County Superior Court challenging the constitutionality of the ESA and seeking to enjoin the State Superintendent of Public Instruction from implementing its provisions.  After the trial court allowed several interested individuals to intervene, they successfully moved to dismiss Niehaus’s claims.  Niehaus timely appealed. 

The Arizona Court of Appeals held that the ESA does not violate either the Religion Clause or Aid Clause of the Arizona Constitution.  Article 2, Section 12, of the Arizona Constitution, referred to as the “Religion Clause”, provides that “[n]o public money . . . shall be appropriated for or applied to any religious worship, exercise, or instruction, or to the support of any religious establishment.” The Court held that the ESA does not violate this provision because it is neutral in all aspects toward religion and directs aid to a broad class of individuals defined without reference to religion.  The ESA is a system of private choice that does not have the effect of advancing religion. 

Article 9, Section 10, of the Arizona Constitution, referred to as the “Aid Clause,” states that “[n]o tax shall be laid or appropriation of public money be made in aid of any church, or private or sectarian school, or any public service corporation.”  The Court determined that the ESA does not violate the Aid Clause either because the specified object of the ESA is the beneficiary families, not private or sectarian schools.  The beneficiaries have discretion as to how to spend the ESA funds without having to spend any of the aid at private or sectarian schools.

The Court also rejected Niehaus’s argument that the ESA unconstitutionally conditions receipt of a government benefit on the waiver of a constitutional right to a free public education.  First, the ESA does not require a permanent or irrevocable forfeiture of the right to a free public education.  Second, parents are not coerced in deciding whether or not to participate in the ESA.  Finally, the ESA does not limit the choices extended to families but expands the options to meet the individual needs of children.

Judge Thompson authored the opinion; Judges Gemmill and Kessler concurred.