Lee Stein [partner, Perkins Coie Brown & Bain] and Elizabeth Kruschek [associate, Perkins Coie Brown & Bain]: "Last week, the Arizona Court of Appeals held that two school voucher programs created by the Arizona Legislature in 2006 were unconstitutional. Those programs provided scholarships or grants of state money to the parents or guardians of foster children and students with disabilities to allow those children to attend private schools. The Court determined that the voucher programs violated Article 9, Section 10 of the Arizona Constitution, which has no federal counterpart and which prohibits "appropriation of public money made in aid of any church, or private or sectarian school."

The court's decision raises doubts about the future success of voucher programs in Arizona. Because Article 9, Section 10 of Arizona's Constitution clearly prohibits state aid to private or sectarian schools – a provision that is not found in all state constitutions – it is more difficult to craft a voucher program that does not run afoul of the constitution. Here, the legislature tried to circumvent Article 9, Section 10's prohibition on aid to private schools by issuing the grant or scholarship to the parent or guardian, who would then endorse that grant or scholarship to the private school of their choice. However, the Court quite rightly saw through the Legislature's attempt to avoid the constitutional prohibition.

Additionally, we hope that the decision will finally put to rest any further argument that the constitutional provisions at issue in this case are are tainted by religious bigotry (known as "Blaine Amendments"). Those in favor of vouchers, like the Institute for Justice in this case, have repeatedly made this assertion, and the Court of Appeals directly – and correctly – disagreed, noting that no link has ever been established between the Blaine Amendment and Arizona's Constitution."