Arizona Sued for Allegedly Mishandling School Choice Program

Published March 9, 2020

A lawsuit has been filed on behalf of several families alleging the Arizona Department of Education (ADE) is breaking state law by making it difficult for families to use funds from the Empowerment Scholarship Account (ESA) program.

The ESA program allows eligible students to opt out of public schools and use taxpayer funds the government would otherwise have spent on their local government school, to enroll the child in a school that better meets their needs. Families can use ESA funds to purchase alternative educational services such as private schools or home schooling.

The alleged violations of state law range from “conditioning payments to parents on ADE’s approval of expense reports for past expenditures under the ESA, to limiting the amount of money parents are allowed to spend on certain categories of expenses, and even requiring parents to ‘repay’ funds under certain circumstances,” states the complaint in Byrd v. Arizona Department of Education, filed by the Goldwater Institute on behalf of the parents in the Maricopa County Superior Court on January 7.

Unauthorized Rulemaking Alleged

ADE policies that entangle parents in red tape violate state law, says Timothy Sandefur, vice president for litigation at the Goldwater Institute, in a January 7 statement.

The ADE’s “policy of requiring parents to have their prior quarterly expense reports approved before they get the funding to which they’re entitled—an approval that takes weeks or even months to receive—violates state law,” Sandefur stated. “So does the Department’s creation of its ESA Handbook, which includes dozens of rules parents must follow to participate in the program—but which was written without following the procedures required by the Arizona Administrative Procedures Act,” Sandefur stated.

The state’s Administrative Procedures Act requires state agencies creating new rules to go through a process that includes extensive input from the public and submitting the proposed rules to the Governor’s Regulatory Review Commission.

“But the Department did none of these things,” Sandefur stated. “It simply adopted the Handbook without consulting the public. Its Handbook, therefore, contains scores of rules that parents must follow that were adopted without any public comment or approval by other agencies that the law requires.

“Making this problem even worse, the Department regularly changes the Handbook, altering its rules arbitrarily from one year to the next,” Sandefur stated.

Compliance ‘Nearly Impossible’

ADE is erecting barriers to keep families out of the program, Veronica Thorson, a Goldwater Institute attorney working on the case, told School Reform News.

“ESA families are desperate for clear guidance,” Thorson said. “Our plaintiffs do their very best to follow the department’s rules, but it’s nearly impossible for them to do so when the department keeps changing the rules and applying them arbitrarily and inconsistently.

“We hope that a win for our plaintiffs—mothers and their children with special needs—will force the department to create valid rules for administering the program and to administer those rules consistently and fairly while ensuring that the purpose of the program is realized—that is, to empower Arizona’s most vulnerable children to receive an education that actually works for them,” Thorson said.

ESAs help children who don’t fit well in the current government schools, Thorson says.

“The public-school system doesn’t work for all children, but ESAs help many children—regardless of their individual needs or limitations or their parents’ lack of resources—to achieve their potential,” Thorson said. “Our plaintiffs all say that their ESAs have been a lifesaver for their children. But the department is making it increasingly difficult for these families to use the program as intended. We hope that a court will put a stop to this.”

‘Unlawful Obstruction’

The ADE’s actions undermine the tax credit scholarship program, says Don Soifer, president of Nevada Action for School Options.

“The unlawful obstruction detailed by the school choice supporters in this case describes serious encroachments that can threaten a popular and effective choice program that specifically benefits families of children with special needs,” Soifer said.

“Arizona’s families are fortunate to have the Goldwater Institute’s vigilant leadership always on the lookout for overreach by government bureaucrats accustomed to harassing and obstructing honest taxpayers seeking to use the choices allowed them by the laws of the state,” Soifer said.

No trial date for a hearing on the complaint had been set as of press time.

Bonner R. Cohen, Ph.D. ([email protected]) is a senior fellow at the National Center for Public Policy Research.

Internet Info

Timothy Sandefur and Veronica Thorson, “Byrd v. Arizona Department of Education, Complaint for injunctive and Declaratory Relief,” Case No. CV2020-000148, Superior Court of Arizona in and for the County of Maricopa, January 7, 2020: