In 2011, teachers’ unions in Arizona filed a lawsuit seeking to block the nation’s first publicly funded education savings account program, a program that awards qualified parents of children with disabilities Empowerment Scholarships that can be used to pay for a wide variety of educational expenses, including tutoring, home school curriculum, private school tuition and textbooks.  The Institute for Justice, the nation’s leading legal advocate for school choice, intervened in the case on behalf of three parents and their children and successfully defended the Empowerment Scholarship program.  The Arizona Court of Appeals upheld the Empowerment Scholarship program because it gives parents direct control over their child’s education funds and it gives them a wide range of choices of where to spend those funds in order to tailor their child’s educational program to their child’s unique educational needs.  As with all constitutional school choice programs, parents—and not the government—decide the best educational setting for their child.

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Parents Head to Court to Defend Their Constitutional Rights

Arizona recently enacted a first-of-its kind school choice program to help children with disabilities.  The Arizona Empowerment Scholarship Account program is a publicly funded education savings account designed to give parents more options—and more control—when determining their child’s educational needs. 1

The program allows parents who decide their special needs child is not receiving an appropriate education in a public school to apply for an Empowerment Account and receive approximately 90 percent of the funds the public school would have received to educate their child.  Parents may then spend that money however they see fit to ensure that their child’s educational needs are met.  The only caveat on the use of the funds is that they be expended for educational purposes.  Parents participating in the program can thus tailor an educational program for their child that includes any mix of schooling at home, hiring accredited tutors, obtaining speech, occupational or other therapies, attending community college, enrolling in private online schools, or purchasing educational services from private and religious schools.  The state will deposit the funds into an Empowerment Account in four quarterly installments.  However, prior to any new disbursement, parents must provide documentation to the state in the form of receipts and bank statements demonstrating that the money has been spent to educate their child.

Unfortunately, those who oppose parental choice in education have filed a lawsuit to put a halt to the Empowerment Account program.  The case, Niehaus v. Huppenthal, was filed in Maricopa County Superior Court on September 26, 2011.  The case was filed on behalf of the Arizona School Boards Association, the Arizona Education Association, and the Arizona Association of Business Officials.  The lawsuit claims the Empowerment Account program aids private and religious schools in violation of the Arizona Constitution’s religion clauses, 2 which are commonly known as Blaine Amendments (described more fully below).  The plaintiffs believe that the Arizona Supreme Court’s recent decision in Cain v. Horne, in which the Court struck down two publicly funded private school voucher programs designed to serve children with special needs, controls this case and requires the new program be declared unconstitutional. 3

The decision in Cain v. Horne diminished parental liberty and increased governmental control over education—results antithetical to Arizona’s educational policies and to basic constitutional rights.  Fortunately, however, the Arizona Supreme Court said in Cain v. Horne that “[t]here may well be ways of providing aid to these student populations without violating the constitution.” 4 Indeed, the program was inspired by the attorney who represented the plaintiffs in Cain v. Horne, based on concessions he made during the oral argument in that case regarding how a constitutional school choice program might function.

Represented by the Institute for Justice, the nation’s leading legal advocate for school choice, three parents with special needs children—Andrea Weck-Robertson, Victoria Zicafoose and Crystal Fox—have filed legal papers to intervene in Niehaus v. Huppenthal to defend the Empowerment Account program.  Andrea’s daughter Lexie has autism and cerebral palsy and is currently thriving at St. Dominic Savio Academy in Tempe, Ariz.  Victoria’s daughter Sarah has severe special needs due to her sensory disorder and various brain surgeries to treat infantile spasms (a form of epilepsy).  Sarah is currently flourishing at the Academy at Lauren’s Institute for Education in Gilbert, Ariz.  Crystal’s daughter Tia has autism and attends the Chrysalis Academy in Tempe, Ariz.  All of their children qualify for the Empowerment Account program and each of the parents is in desperate need of finding a stable, secure source of funding to pay for the cost of their child’s education.

On behalf of Andrea, Victoria and Crystal, the Institute for Justice will argue that parents have a protected constitutional right to control and direct the upbringing and education of their children 5 and that nothing in the Arizona Constitution prohibits the state from giving parents the freedom to decide how best to spend the money that is appropriated to educate their children.

Arizona’s Education Policy:  Freedom of Choice

Over the past two decades, Arizona has adopted numerous innovative and reform-minded educational policies designed to give Arizona parents a wide array of educational options for their children.  From wide-ranging open public school enrollment policies, 6 to magnet and charter schools, 7 to a flourishing scholarship tax-credit program that brings private schools into the parents’ mix of options, 8 Arizona is eliminating the “one-size-fits-all” approach to public education that currently dominates America’s public education system.

The popularity and success of these measures led to the adoption in 2006 of two small pilot voucher programs, one for children with special needs and another for children in foster care. 9 But in Arizona, it seems that no school choice program goes unchallenged in court.  While Arizona’s tax-credit programs were fully vindicated by both the Arizona and U.S. Supreme courts, 10 the voucher programs were declared unconstitutional by the Arizona Supreme Court in Cain v. Horne under a provision of the state constitution that prohibits appropriations of public funds “in aid of” private and sectarian schools. 11 In the wake of Cain v. Horne, the legislature passed Lexie’s Law, 12 a corporately funded scholarship-tax-credit program to help fund private school scholarships for children with disabilities.  Under Lexie’s Law, corporations and insurance companies may claim a dollar-for-dollar tax-credit on their income or premium taxes respectively for donations to private charities that award scholarships to the children who were eligible to participate in the voucher programs.  Even though Lexie’s Law has a generous $5 million cap, the tax credit has not raised enough money to help all of the students who were depending on the voucher programs and the many more who had hoped to take advantage of those programs. 13

Parents and children were grateful for the passage of Lexie’s Law, including all the parents who have moved to intervene in Niehaus v. Huppenthal, but the difficulty of raising corporate funds led parents and school choice advocates to look for new methods of delivering genuine school choice to these deserving families.  The solution was the Arizona Empowerment Scholarship Account program.  The program is not only designed to pass constitutional muster, but also to provide families relying on scholarship assistance with a stable source of funding and the opportunity to design the best possible educational program for their special needs child.

How the Arizona Empowerment Scholarship Accounts Work

The Arizona Empowerment Scholarship Account program is simple and straightforward.  It is available only to families of children with disabilities, but otherwise there is no cap on participation in the program.  In exchange for a parent’s agreement not to enroll their special needs student in a public or charter school, the state agrees to make quarterly deposits into an educational savings account in an amount slightly less than the public school would have received to educate the child. 14 Parents are required to “provide an education for the qualified student in at least the subjects of reading, grammar, mathematics, social studies and science.” 15

Parents are free, however, to use the Empowerment Account funds for a wide array of educational options, including payment of tuition or fees at a private school, purchasing educational therapies or services from a licensed or accredited provider, or hiring an accredited tutor to provide tutoring services. 16 The funds may also be used to pay for the child’s education in a community college or a public or an accredited private university. 17 In order to remain eligible for the program, however, parents will be required by the Department to submit receipts and bank statements demonstrating that they have spent the Empowerment Account funds to provide for their child’s education.

Any parent of a child with a disability who either attended a public school for 100 days during the fiscal year before applying for the Empowerment Account program or who received a scholarship under Lexie’s Law is eligible to apply for the new program.

School Choice Litigation in Arizona

The first lawsuit challenging an Arizona school choice program was filed in 1997 in the Arizona Supreme Court and argued that the individual scholarship-tax-credit program violated both state and federal constitutions’ religion clauses.  The court determined the tax-credit passed federal constitutional muster because it was religiously neutral and allowed a broad spectrum of private choice; it therefore did not have the impermissible effect of either advancing or inhibiting religion under the Establishment Clause. 18

The Arizona Supreme Court also upheld the tax-credit program under the state constitution.  The court recognized that the language of the Arizona Constitution’s religion clauses is a vestige of Maine Congressman James G. Blaine’s attempt to ride a wave of anti-Catholic bigotry to the White House in the 1870s and 1880s. 19 Mr. Blaine rose to prominence at a period of time when the public schools were predominantly Protestant. 20 Finding the public schools inhospitable to their doctrine, Catholics pushed for a separate system of publicly funded Catholic schools. 21 Blaine thus attempted to amend the U.S. Constitution to prohibit any public funding for “sectarian” schools—and it was an open secret that sectarian was code for Catholic. 22

The Arizona Supreme Court declared it would be “hard pressed to divorce the amendment’s language from the insidious discriminatory intent that prompted it.” 23 The court therefore refused to interpret the provisions beyond the scope of their plain language and concentrated on the meaning of the phrases “public money” and “appropriation of public money.” 24 Given that no money from the tax-credit program ever enters the state treasury or is ever controlled by the government, the Arizona Supreme Court declared that “under any common understanding of the words, we are not here dealing with ‘public money.’” 25

A decade later, the Arizona Supreme Court was faced with deciding whether two new state educational programs—traditional voucher programs—designed to educate special needs and foster children were constitutional under the Arizona Constitution.  In Cain v. Horne, the Arizona Supreme Court said they were not and struck down these programs because parents had “no choice; they [had to] endorse the check” over to a private school.  While it seems ironic that programs intended to give parents a genuine and free choice between district, charter and private educational options could be construed to limit and constrain choice, no such characterization can be made of the Arizona Empowerment Scholarship Account program.  The money deposited in the Empowerment Accounts will be controlled by parents and available for a wide range of educational services.

The New Legal Challenge to Arizona’s Empowerment Accounts

The new lawsuit challenging the Arizona Empowerment Scholarship Account program claims the program violates the same constitutional provisions used to strike down the previous voucher programs—specifically, that they don’t offer choice beyond a private school option—but Empowerment Accounts differ from these earlier programs in important and constitutionally relevant ways.

Empowerment Accounts give parents of special needs children a full menu of educational options from which to choose to spend the funds and do not require parents to enroll their children in private school at all.  And, with all constitutional school choice programs, parents—and not the government—decide which (if any) school a child attends.  In that way, it is abundantly clear the program aids individuals—not institutions.  The idea for the Empowerment Account program sprang from an exchange during the oral argument in Cain v. Horne between Arizona Supreme Court Justice Andrew Hurwitz and the plaintiffs’ attorney Donald M. Peters:

Justice Hurwitz:  Do you agree that the state could pick this population of worthy parents and say to them “here’s a grant for each of you for $2,500 to be used in pursuit of your children’s education, spend it as you wish?”

Peters:  Yes.

Justice Hurwitz:  And if they spend it on a private or parochial school, or on a public school transfer, that would be okay?

Peters:  Yes.  I think the dividing line is how much the state constrains the choice. 26

Later during the oral arguments, the discussion returned to this subject:

Peters:  Under the Aid Clause, that funding is for the most part only going to be used to pay one of two prohibited recipients.  So the choice is constrained to the point that the odds are overwhelming that it’s going to go to a prohibited recipient.

Justice Hurwitz:  So then why wouldn’t that make illegal the program I just described, where we said to each parents “here’s money to use for your child’s education?”  Those who are going to public school would have no expenditure in any case.

Peters:  My assumption is that you can hire a tutor with it, you can do all kinds of things with it other than paying a private or religious school. 27

The program was also designed to comply with the specific instructions laid out by the Arizona Supreme Court in Cain v. Horne.  There, the Court said it was “immaterial” that the “check or warrants first pass through the hands of parents” because once the child was accepted by a private school, both voucher programs at issue gave parents or guardians “no choice; they [had to] endorse the check or warrant to the qualified school.” 28 That is not true of the Empowerment Account program.  Parents have ample choice as to where and how to spend the money.  Parents can use the funds to purchase curriculum and home school their child.  They can enroll their child in a private, online school.  They can use the funds for private tutoring.  And, of course, they are able to use it for private school tuition—should they so choose.  And the money is also available to pay for a college education.  The Empowerment Account program clearly transfers state funds to parents and children for educational purposes—not to private or religious schools.

The Arizona Supreme Court’s decision in Cain v. Horne was devastating for many parents whose children were flourishing in their school of choice.  But, as is the American way, school choice supporters have turned adversity into an opportunity to expand educational freedom in a way that will save taxpayers money and in a manner that is entirely constitutional.

Litigation Team

IJ-AZ Executive Director Tim Keller will lead the litigation team, assisted by IJ Senior Attorney Richard D. Komer and Paul Avelar, a staff attorney at the Institute for Justice Arizona Chapter.

The Institute for Justice:  Defending School Choice for 20 Years

The Institute for Justice has a long history of successfully defending school choice from legal attacks and has represented parents and children in defense of every one of Arizona’s private school choice programs that have been challenged in court.  IJ represented intervening parents in the successful defense of:

Arizona’s Individual Scholarship Tax Credit Program, Ariz. Christian Sch. Tuition Org. v. Winn and Kotterman v. Killian;

Ohio’s Pilot Scholarship Program, Zelman v. Simmons-Harris and Simmons-Harris v. Goff

Milwaukee’s Parental Choice Program, Jackson v. Benson;

Arizona’s Corporate Scholarship Tax Credit Program, Green v. Garriott; and

Illinois’ Educational Expenses Tax Credit Program, Toney v. Bower.

The Institute for Justice currently represents intervening parents in Douglas County, Colo., and in Indiana defending recently passed school choice programs in those jurisdictions.

The Institute for Justice Arizona Chapter is located in Tempe and litigates under the state and federal constitutions to reinvigorate economic liberty, preserve property rights, promote educational choice and defend the free flow of information essential to politics and commerce.  The Institute for Justice is headquartered in Arlington, Va.

For more information, please contact:

John Kramer
Vice President for Communications
Institute for Justice
901 N. Glebe Road, Suite 900
Arlington, VA 22203-1854
(703) 682-9320 ext. 205
[email protected]


Timothy D. Keller
Executive Director
Institute for Justice Arizona Chapter
398 S. Mill Avenue, Suite 301
Tempe, AZ 85281-2840
(480) 557-8300
[email protected]

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