Victory Secures School Choice in AZ

June 4, 2014

One of IJ’s secrets to success is our resilience. When we encounter adversity, we craft strategies to overcome whatever defeat we have suffered and move forward aggressively. IJ’s resilience recently paid off in a big way in Arizona. In March, we scored a final victory in a school choice case that signifi- cantly expands educational opportunities for tens of thousands of Arizona families. But our momentous win started with a difficult loss.

In 2009, in a case named Cain v. Horne, the Arizona Supreme Court struck down two state-funded scholarship programs that provided tuition assistance to families. One of the programs served children with special needs; the other served children in foster care.

The programs were making a real difference in our clients’ lives. Andrea Weck-Robertson’s daughter, Lexie, was making tremendous academic and social gains at a private school after public school officials had told Andrea they did not know where to place or how to educate Lexie. Crystal Fox’s daughter, Tia, was making significant progress at another private school after Crystal was told by a public school teacher that parents whose children are as severely autistic as Tia typically do not send their children to school.

It was extremely difficult to call Andrea and Crystal to tell them that the court had severed their children’s educational lifelines. But before hanging up the phone, I promised Andrea and Crystal one thing: IJ would not leave them or their chil- dren adrift at sea.

As an initial measure, IJ worked with our local school choice allies to pass a new tax-credit- funded scholarship program. Arizona’s courts had previously upheld tax-credit schol- arship programs, thanks in large measure to IJ’s legal advocacy. The Arizona Legislature even named the new tax-credit program Lexie’s Law. The program secured many children’s educa- tional futures, including Tia’s and Lexie’s, but in the midst of the financial crisis, it failed to attract the robust funding needed to help all of the kids who lost their scholarships. So we went back to the drawing board.

Working in tandem with our friends at the Goldwater Institute and the Center for Arizona Policy, IJ helped create the nation’s first publicly funded education savings account (ESA) program. Under the program, parents receive quarterly deposits into a savings account in an amount slightly less than their child’s public school would have received. Parents can use those funds for a wide array of educational options, including private school tuition, curriculum and books for use at home, therapies to help children speak or write, hiring tutors or purchasing individual classes at a public school. ESA funds can even be saved for college expenses.

The genesis of the ESA program came from language in the Cain decision that empha- sized that parents have “no choice” but to use their previous state-funded scholarships to attend private schools. The ESA program, on the other hand, allows parents to pick and choose from an à la carte menu of educational options to meet their child’s unique needs. While parents are permitted to choose a private school under the program, they are not required to do so and may educate their child through any combination of the allowable edu- cation expenses.

The teachers’ unions challenged the ESA program in court as soon as it was signed into law. IJ was ready and immediately intervened on behalf of Crystal—this time focusing on her son Austin, who has Asperger’s Syndrome and who, by that time, was ready to drop out of a public education system that had utterly failed him. Since enrolling in the ESA program, Austin has gone from a 2.0 GPA to nearly a 4.0 GPA. Crystal credits the program with saving Austin’s life.

The Arizona Supreme Court recently decided not to review IJ’s Court of Appeals victory putting an end to the legal challenge and leaving the ESA program on firm constitutional footing. Losing is never easy, but IJ’s never-say-die approach to public-interest law means we create opportunities to overcome even the worst adversity. And when we do finally prevail, there is nothing sweeter than picking up the phone to tell our clients, “We won.”

Tim Keller is executive director of the Institute for Justice Arizona Chapter.

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