Court Upholds Arizona’s Ground-Breaking Education Savings Accounts for Children with Special Needs

J. Justin Wilson
J. Justin Wilson · January 26, 2012

Arlington, Va.—Last night, a Maricopa County Superior Court Judge upheld Arizona’s Empowerment Account Program as constitutional under the Arizona State Constitution.

The program, which is first of its kind in the nation, allows qualified parents of children with special needs to apply for an Arizona Empowerment Account and use the funds deposited by the state into those accounts for a wide variety of educational expenses, including tutoring, private school tuition, required textbooks and savings for college expenses.

The Honorable Maria del Mar Verdin ruled that “the exercise of parental choice among education options makes the program constitutional. The monies are earmarked for a student’s educational needs as a parent may deem fit—not endorsed directly to a private institution in an all or nothing fashion.”

“The Court ruled that Arizona’s Empowerment Account Program passes constitutional muster because parents, not government officials, decide what educational options are best for their children,” said Tim Keller, executive director of the Institute for Justice Arizona, which represented parents in the case. “The program gives parents a full menu of educational options on which to spend the funds. In that way, it is abundantly clear the program aids individuals—not institutions. And, with all constitutional choice programs, parents—not the government—decide which school a child attends.”

The ruling continued, “The Court finds that the Plaintiffs fail to overcome the burden of showing beyond a reasonable doubt that S.B. 1533 is unconstitutional. There is a strong showing that S.B. 1533 is constitutional because it allows the parents of qualified students to choose how and when all, or a portion of, the scholarship monies are spent.”

“Our family is overjoyed that the court has upheld the legislature’s efforts to give parents of children with disabilities the choices they need to help their children succeed,” said Nicole M. Goodwin, a parent whose son, James, has autism, and relies on the program to attend a private school that specializes in educating children with severe language/communication, learning and behavioral needs.

The lawsuit claims that the Empowerment Account Program violates the religion clauses of the Arizona Constitution and the Arizona Supreme Court’s 2009 decision in Cain v. Horne, which struck down a traditional voucher program for children with disabilities. In Cain, the Arizona Supreme Court said voucher programs are unconstitutional because parents have “no choice; they [have to] endorse the check” to a private school. No such characterization can be made of empowerment accounts.

“We will continue to defend the Empowerment Scholarship Account Program when the teachers’ unions and their allies choose to appeal this decision,” continued Keller. “We will go all the way to the Arizona Supreme Court if that is what it takes to make sure this program remains in effect.”

The Goldwater Institute, which helped develop the Empowerment Scholarship Account Program, also intervened in the case to defend the program.

The Institute for Justice has represented parents and children in defense of every one of Arizona’s private school choice programs that have been challenged in court since the state’s individual tax credit program was adopted in 1997.