Arizona Supreme Court allows school choice program to stand

Part 75 of 75 in the series Educating America

By Mary Tillotson |

Arizona’s highest court has effectively ruled in favor of the state’s innovative education savings account program, allowing hundreds of students access to a flexible, tailored education.

“This is really exciting news for families in Arizona,” said Jonathan Butcher, education director for the Goldwater Institute, which had intervened in the lawsuit on behalf of Arizona families.

Last fall, the state’s appeals court ruled in favor of the program, distinguishing it from a voucher program that was ruled unconstitutional in 2009. Opponents of the ESA program appealed, and the Supreme Court on Friday denied the appeal, allowing the lower court’s decision — and the program — to stand.

“What’s tremendous is that the appeals ruling was so strong,” Butcher said. “The language in there really confirmed everything that we said about education savings accounts from the beginning. We’ve made the case that they are distinct from vouchers and the provision in the law makes them unique, and parents are not compelled to spend their money on any one thing.”

When the state Supreme Court struck down the voucher program in 2009, it found legal footing in the state’s Blaine Amendment, which prohibits public funds from aiding private schools, whether or not they’re faith-based. Families using vouchers were required to spend voucher money on private schools.

Families using ESAs receive a limited-use debit card and permission to spend that money on private school tuition, textbooks, tutoring, education therapy and other educational expenses. The money rolls over year to year and can be saved for college.

When the appeals court upheld the ESA program, it noted that parents don’t have to spend the money on private school tuition — and therefore, the program doesn’t violate the state’s constitution.

“The specified object of the ESA is the beneficiary families, not private or sectarian schools,” the appeals court’s opinion stated. “Depending on how the parents choose to educate their children, this may or may not include paying tuition at a private school.”

Butcher said he hopes other states will take the court’s decision as a cue to enact their own ESA programs.

“The life cycle of school choice programs is almost predictable,” he said. “It gets passed in the law, the union sues, the court decides, and if they decide favorably, other states start doing it.”

About 700 students are currently using Arizona’s ESA program, and state lawmakers are considering several bills that would expand the program to allow more students to participate. Currently, students with special needs, children adopted from the state foster system, children assigned to failing schools and children of active-duty military families are eligible.

Several states have considered enacting ESA programs, but so far none has passed.

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