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IJ Defends Nation’s First Publicly Funded Education Savings Account Program

By Tim Keller

It is said that no good deed goes unpunished. In Arizona, it seems that no good school choice program goes unchallenged in court. The ink was barely dry on the nation’s first publicly funded education savings account program—a program designed to benefit children with disabilities—when the Arizona Education Association filed suit to halt its implementation.

Arizona’s “Empowerment Scholarship Account Program” is a brand new form of school choice. The program is simple and straightforward. In exchange for a parent’s agreement not to enroll their special-needs student in a public or charter school, the state will make quarterly deposits into an empowerment account in an amount slightly less than what the public school would have received to educate the child (thus saving the state money). Parents can then use those funds for any mix of the wide array of educational options permitted by the program, including paying tuition or fees at a private school, purchasing educational therapies or services from a licensed or accredited provider, educating their child at home, or hiring an accredited tutor.

One of the children who will benefit is Lexie Weck. Lexie, a ten-year-old girl with cerebral palsy, autism and mild mental retardation, is no stranger to the school choice debate. Lexie and her mother, Andrea Weck Robertson, became the face of the school choice movement in 2006 when they intervened in Cain v. Horne to defend a voucher program for children with disabilities from a prior teachers’ union lawsuit. Lexie used that program to escape a public school system that refused to meet her needs and to attend a private school where she flourished.

In Cain, the Arizona Supreme Court struck down the voucher program because parents had “no choice; they [had to] endorse the check” over to a private school. The Court said this constraint on parental choice ran afoul of the Arizona Constitution, which prohibits giving state aid directly to private schools. Although it is ironic that a program that gave parents a genuine and free choice between district, charter and private educational options was construed to limit parental choice, no such characterization can be made of the Empowerment Scholarship Account Program.

The money deposited in Empowerment Accounts is controlled by parents. Parents can thus tailor their child’s educational program by choosing from a broad menu of educational options and services. In that way, it is abundantly clear the program aids individuals—not private schools.

Since the court’s decision in Cain, parents like Andrea have relied on a scholarship tax-credit program named after Lexie for tuition assistance. But unfortunately, that program has not resulted in many scholarships and the funding is uncertain from year to year. The Empowerment Scholarship Account Program, however, gives parents hope for a stable and reliable program. And there is a reason to believe the Arizona courts will uphold the program: It is designed to comply with the Cain decision.

Although the teachers’ unions seek to limit parental choice, Andrea and Lexie, along with several other parents of special-needs students, have teamed up with IJ to intervene in the lawsuit and defend Arizona’s Empowerment Scholarship Account Program. A lot is riding on the outcome of this case. There are thousands of Arizona children with disabilities who need an alternative to public schools. We will not rest until we have secured their parents’ right to choose the best education for their child.

Tim Keller is the IJ Arizona Chapter executive director.

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