Robert Robb covered much of what I would have wrote in a guest opinion on the matter, albeit with different emphasis; you thus won't see anything in the newspapers from me. But what I'd have put in a guest opinion and what I have to say about the matter are not coextensive sets.
Whatever immediate harm it brings to foster and disabled children, the defeat in Cain v. Horne could be turned into victory by further action, much as the defeat in Kelo v. New London brought about the passage in forty-two states of laws prohibiting use of eminent domain takings to transfer from one private party to another, and enabled us, in Arizona, to additionally enact Epstein's doctrine of partial takings into law through passage of 2006's Proposition 207. Here we have two programs that harmed nobody, that didn't even constitute a token violation of Establishment Clause civil liberties (as the SCOTUS has definitively ruled and the ACLU-AZ will learn again soon when Hibbs v Winn is decided on its merits), and that helped to get disabled children the education the one-size-fits-all legacy public schools couldn't give them, and give disadvantaged foster kids some stability. The decision was just in a legalistic sense, but it was the equivalent of taking candy from babies. If the public were to be made aware of this--"An obsolete and gratuitous clause of our State Constitution harmed schoolchildren, and disadvantaged schoolchildren at that!"--we could effect change for the better.
Three non-mutually-exclusive options present themselves:
- Amend the State Constitution. There are two ways to do this. The simplest in many respects is a legislatively referred constitutional amendment (LRCA), passed as a resolution by the legislature and sent to the voters for approval in the next general election. The other is by petition; in Arizona, constitutional amendments may be proposed as initiatives. This is expensive and somewhat difficult due to the high signature requirement.
The fight we will have on our hands if we try this will be from opponents of private education, and the argument that they will make is that we are taking protections against public subsidy of religion out of the State Constitution. This is of dubious merit for reasons explained in Zelman v. Simmons-Harris: an accident of private choice doesn't constitute establishment or subsidy of religion. Dubious merit, however, doesn't mean much when the question is put in front of the voter. Only a naif would think that the majority of voters think things through, and as Bryan Caplan has remarked, the bozos don't cancel each other out, either.
This could be mitigated somewhat if the amendment is kept conservative. Instead of striking all of Article 9, Section 10, merely strike "or private or sectarian school." This may be slightly problematic; I do not know if parochial schools are legally separate from the Church, and payments to churches would still be prohibited. If this is the case, then the parochial schools could legally separate from the Church. That's a nonideal situation, but if it helps the kids, it's probably worth it. Likewise a school could be a "public service corporation", but that schools were listed separately means it's likely that a court would find that they are not.
- Expand the education tax credit. That Arizona's tax credit program runs afoul of neither the State nor the Federal Constitution is settled law. ACLU-AZ's frivolous Hibbs v Winn (against which I bucked hard after the Zelman decision came out) is still out there, awaiting the ruling of the Ninth Circuit, but it has no peculiar twist that prevents the reasoning in Zelman from being applied in toto. The tax credit program, in brief, provides a capped dollar-for-dollar credit for individual donors to "School Tuition Organizations", specially privileged and regulated charities which must contribute at least ninety percent of what they take in to pay tuition fees for schoolchildren. It's better than nothing, but it does nothing to address the market failure at hand. A dollar-for-dollar tax credit to parents, grandparents, uncles, aunts, cousins, neighbors, or anyone else who pays all or part of the tuition fees of a particular child, capped per child at the state's per pupil expenditure on the legacy public schools, is in order. If it begins with a pilot program covering foster children and the disabled, that's a good start.
Any tax relief, even this sort, which "pays for itself" will be a hard sell at the moment due to the State's current budget woes. Democrats are already targeting the existing ersatz tax credit. Their intentions aren't good, either. It's not as though they're out of other options; they're doing this because they oppose school choice for ideological reasons and because, being a relatively small and politically unorganized minority, private-school kids and their families are an easy mark.
- Foster and disabled children could be served by tuition organizations. School tuition organizations (to those of us who know what "tuition" really means, that's a horrible term) of the type for which donors can receive the tax credit could be set up specifically to serve the populations directly harmed by this ruling. A campaign could start--and I suppose it just began with me--encouraging taxpayers to make the maximum donation to these charities. We could teach the anti-choice public a lesson and beat them over the head with our magnanimity for years to come. "We support school choice because we want to do better for the kids, not for teachers' unions and obsolete institutions for which empty-headed types feel nostalgia. And we stood up and helped the kids you condemned to an inferior education." I'd get the ball rolling on this myself, were it not for this PhD thing in the way! Take my idea as inspiration and run with it--and let me be the first to know if you do so.
This will be a difficult fight. If editorial writers at the Tucson Citizen still don't understand the rationale for school choice, it's a sign that the average Tucson citizen and the average Arizonan doesn't understand it, either. There's no excuse for that at this late date--the idea is at least forty years old--but such is the nature of ignorance. And there'll be a backlash against this from public school parents. We're already seeing this on the ever-ugly newspaper comment boards. Union sleaze at Arizona chapter of the NEA call the total amount of money disbursed by school tuition organizations "Loss of Funding for Public Schools and parents don't see the slight of hand. The average person with the 100 IQ doesn't see the slight of hand. The AEA can't point to any loss of funding at all, but parents and much of the public believes that those charitable disbursements were taken from the public schools that their kids attend. And on top of this we have the "Idiocracy Factor", a combination of faux nostalgia for mediocre institutions and aversion to difference. "Why can't they go to regular school like normal people?" Listen hard enough to opponents of school choice, and you'll hear all of the tics and tropes of oppressors of out-group minorities.
And we can't rely on success of choice programs elsewhere to make the merits of change obvious. Every time concealed carry was proposed, we heard the same things over and over. It didn't matter that Washington didn't see "blood on the streets" and "people just 'running around' everywhere with guns" and shootouts over parking-lot disputes. It didn't matter that Florida didn't see them. It didn't matter in the forty-eighth state to adopt concealed carry that it was successful in forty-seven states. And last year when we were trying to get a campus concealed-carry bill passed it didn't matter that concealed carry has been legal and unproblematic in Arizona for years. We still heard the same stale arguments against it, and the press took these people, however ridiculous, seriously. It's a wonder that the press doesn't seek out supporters of the Divine Right of Kings every time there's an election, to "balance" their stories. Intellectual credibility is not the same as credibility with the public and thus not the same as credibility with politicians and the press. The evidence in our favor will help, but however definitive, a great many people, on seeing the real world clash with ideology, will decide ideology is right and the world is wrong.
The fight will thus be difficult, but I am confident that we, champions of markets, liberty, moral individualism, and the welfare of the individual child, are on the right side of history. This may not be our year, the moment may not be right, but education is too important for us to not fight over and too important to leave to anything but the market. Get to know each other, get organized, and get ready.